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Trial 

OF ^ 

ENSIGN ROBERT DILLON, 

OF THE CORPS COMMONLY CALLED 

THE REPUBLICAN' GREEJV RIFLEMEK 
BEFORE A COURT-MARTIAL, ON TWO SEVERAL CHARGES. 

FIRST — OF 

MUTINY. 

SECOND — OF 

UNGENTLEMANLY #• UNOFFICERLIKE 
CONDUCT. 

With the proceedings, at full length, and the Speeches of 

Counsel on summing up, viz. of Mr. Sampson 

on behalf of the prisoner, and Mr. Adrian 

Hegeman, Judge Advocate, in reply. 

On this Trial the Jurisdiction of Courts-Martial over Mem- 
bers of Militia and Volunteer Corps was amply investigat- 
ed ; many learned Authorities and grave Arguments 
adduced ; enforced by humourous Remarks and Illustra- 
tions. 



NEW-YORK: 
PRINTED BY SOU'VHWICK & PELSlJE, 

No. 3, New-Street", 

1809. 



4 



& 






district of New- York, ss. 

Be it remembered, That on the twenty-eighth 
day of September, in the thirty-fourth year of the 
independence of the United States of America, Ro- 
(L. S.) bert Dillon, of the said district, hath deposited in 
this office the title of a book, the right whereof he 
claims as proprietor, in the 'words following, to 
wit : 
" Trial of Ensign Robert Dilion, of the corps commonly called 
the Republican Green Riflemen, before a court-martial, on two 
several charges ; first, of mutiny ; second, of ungentlemanly and 
unofficerlike conduct. With the proceedings, at fall length, and 
the speeches of counsel on summing up, viz. of Mr. Sampson, on 
behalf of the prisoner, and Mr. Adrian Hegeman, Judge Advocate, 
in reply. On this trial the jurisdiction of courts-martial over mem- 
bers of militia and volunteer corps was amply investigated ; many 
learned authorities and grave arguments adduced ; enforced by 
humourous remarks and illustrations.'* 

In conformity to the act of congress of the United States, entitled 
an act for the encouragement of learning, by securing the copies of 
maps, charts, and books, to the authors and proprietors of such 
copies, during the time therein mentioned," and also to an act en- 
tilled fi an act supplementary to an act entitled an act for the en- 
couragement of learning, by securing the copies of maps, charts, 
and books, to the authors and proprietors of such copies, during the 
times therein mentioned, and extending the benefits thereof to the 
arts of designing, engraving, and etching historical and other 
prints." 

CHARLES CLINTON, 
Clerk of the District of New- York. 




PROCEEDINGS OF THE COURT-MARTIAL, 



FIRST DAY. 

AT a Brigade Court- Martial, held at Hallam's Tavern, 
on the 22d of August, 1809, at 10 o'clock, a. m. 

PRESENT, 

Lieut. Col. Jasper Ward, President. 

Captain Pinckney, ~) _. ' .'. 

r* * ■ \m > r irst Kesriment. 

Captain Wright, 5 

Major Gardner, ") o i ™ . 

nn . • x T > becond Kesriment. 

Captain Neal, 5 

Captain Davis, ? ^ . , „ . 

r. * . ■»* > 1 hird Resriment. 

Captain Myers, 3 

Captain Christian, ) 

Captain Swanton, C Fourth Regiment; 

Lieut. Nisbet. ) 

Adrian Hegeman, counsellor at law, being appointed 
judge advocate, read the orders for convening the 
court-martial, and administered to each member the 
oath prescribed by the seventy -third section of the mi- 
litia law, viz. 

" You, do swear, that you will well 

and truly try and determine according to evidence, the 
matter now pending between the people of the state of 
New- York and ensign Robert Dillon : and you do fur- 
ther swear, that you will not divulge the sentence of the 
court, until the same shall be approved or disapproved, 
pursuant to the act entitled " an act to organize the 
militia of this state," neither will you, upon any account 
or at any time whatsoever, disclose or discover the vote 



or opinion of any particular member of the court- mar- 
tial, unless required to give evidence thereof by a court 
of justice in a due course of law. So help you God." 

The president then administered to the judge advo- 
cate the following oath, as directed by the section 
aforesaid. 

" You, — : do swear, that you will ndt 

upon any account or at any time whatsoever, disclose 
or discover the vote or opinion of any particular mem- 
ber of the court martial, unless required to give evidence 
thereof by a court of justice in a due course of law, and 
that you will not divulge the sentence of this court until 
the same shall be approved or disapproved, pursuant to 
the act entitled " an act to organize the militia of this 
state.' ' So help ycu God." 

The charges preferred by captain Daniel Fisher 
against his ensign, Robert Dillon, were then read by 
the judge advocate, and the prisoner was called upon 
to answer to them. 

Charges proposed by Daniel Fisher, captain of the 
first company of the first battalion of republican green 
riflemen of the city and county of New- York, against 
his ensign, Robert Dillon, viz. 

FOR MUTINY. 

" That the aforesaid Robert Dillon, in the presence of 
lieutenant Tait, declared, that he could and would take 
from the said battalion, sixty men, and that he, the said 
Robert, did parade a number of men in the republican 
green uniform, contrary to law and without the consent 
or permission of any of his superior officers, and further 
declared, that he and his party in the present contest, or 
the republican green battalion, must fall." 

UNGENTLEMANLY AND UNOFFICERLIKE 
CONDUCT. 

That on the night of the 27th of June last past, at an 
election of a commissioned officer, did insultingly call 
the officers of the aforesaid battalion, tyrants and orange- 
men, and other u .^gentlemanlike epithets. And that he 



did seduce certain soldiers from sundry companies of 
the aforesaid battalion, and held out as a seduction to 
the commissioned and non-commissioned officers, that 
if they did withdraw from their duty and join him in 
his disorganizing scheme, they should at least hold 
their respective ranks, in his corps, that they now held. 

D. FISHER. 

To Francis M'Clure, Esq. commandant^ 
of the first battalion of republican I 
green riflemen of the pity and county ?" 
of New-York. j 

These charges were delivered to Mr. Dillon, accom- 
panied by the following letter. 

New-York, August 14, 1809, 
sir, 

Captain Fisher having preferred the annexed charges 
against you, I consider it my duty in complying with 
his request, and do hereby order you under arrest in 
consequence of said charges. Brigadier general Sted- 
diford will immediately be furnished with an official 
statement of the transaction. 

Your's, &c. 

FRANCIS M'CLURE, 
Major commandant of the battalion of rifle- 
men in general Steddiford's brigade. 

pnsign Robert Pillon. 

It was afterwards notified to the prisoner on the part 
of the brigadier general, that a court-martial had been 
ordered for his trial upon the foregoing charges, to be 
held at Hallam's tavern, No. 71, Nassau- street, on 
Tuesday, the 22d inst. at 10 o'clock, a. m. in obedience 
to which order he appeared by his counsel, Mr. William 
Sampson. 

The order was as follows : 

FIRST BRIGADE OF INFANTRY. 

BRIGADE ORDERS. 

A brigade court-martial, of which colonel Jasper 
Ward is appointed president, will sit on Tuesdav, the 



22d inst. precisely at 10 o'clock, a. m. atHallam's tav- 
ern, No. 71, Nassau- street, for the trial of ensign Robert 
Dillon of the rifle corps, now under arrest, and such 
other persons belonging to this battalion as may be 
brought before them. All persons concerned are or- 
dered to attend. Major M'CIure will furnish an orderly 
sergeant to attend the court. 

DETAIL FOR THE COURT-MARTIAL. 

Field Officers. Capts. Lieuts. 

The first Reg't will appoint 1 major 2 1 

Second do. 1 1 

Third do. 2 1 

Fourth do. 2 1 



1 7 4 

By order of brigadier general STEDB1F0RB > 

PETER STAGG, 

Brigade major and inspector. 



TRIAL, &e. 



THE charges being read through, and the prisoner 
put to plead, his counsel objected to their sufficiency, 
as well in substance as in form. He said that the whole 
of the facts set forth in them amounted to no crime of 
which this court could have cognizance, and that he was 
at a loss to imagine under what law such a charge could 
be brought. But if the court even had jurisdiction 
over the cause and over the prisoner, as it had neither, 
the charges were so indefinite, vague, and absurd, that 
no man should be put to answer to them, nor de- 
tained or deprived of his liberty wpon the strength of 
them. 

He thought it then a duty to state his objections in 
the beginning, as it might save the court the trouble of 
an investigation that could produce no legal result, spare 
the witnesses unnecessary attendance, and prevent the 
aggravation of the injury done the prisoner by an im- 
proper arrest and detention from his affairs. 

The objections were almost as numerous as the words 
of the accusation, for there was scarcely one word in 
the v\ hole compatible with law or common sense. Some 
were apparent upon the face of the charges, and might 
be taken advantage of on demurrer. Such as requited 
proof might be likened to pleas in abatement, on these 
the prosecutor might take issue, or else if he chose to 
admit the facts, demur. Some of them going to the 
insufficiency of the charges might be received as a, 



3 

motion to quash an indictment. He supposed the court 
sufficiently unshackled by forms, to adopt whatever 
method was most conducive to convenience, and would 
conform himself thereto* 

The counsel then read through the charges with the 
following comments. 

" Charges proposed by Daniel Fisher, captain of the 
first company of the first battalion of Republican Green 
Jiiflemen of the city and county of New- York, against 
his ensign, Robert Dillon. 

Such is the title, or, in law language, the caption of 
these charges, and it is remarkable in the outset, that 
the law knows no such man as the prosecutor describes 
himself to be ; no such company as he is said to com- 
mand ; and no such ensign as he accuses by the addition 
of his ensign. I do not incline to great subtilty, yet the 
certainty required in criminal proceedings is one of the 
greatest securities a free citizen has to rejoice in, and to 
trifle with so great an advantage, would be to undermine 
the public rights, and invade individual safety. But 
this right is too firmly guaranteed by the constitution 
and the law to be infringed. 

There was, it is true, an attempt, and a legal and 
meritorious one, made some time ago to organize a 
company in which Mr. Fisher was authorised to com- 
mand as captain, and Mr. Dillon commissioned as 
ensign ; but that attempt never succeeded, because 
there were not thirty men in uniform, including eight 
non-commissioned officers, within a year from the or- 
ganization of the same, and from the date of the officers' 
commissions, as was required by law. 

The 30th section of the militia law, passed the 29th 
of March last, says that in such case the company is to 
be disbanded. The fact is not denied, and therefore 
the year being elapsed, and the condition unfulfilled, 
there exists clearly no such company as that in which 
ensign Dillon is said to have mutinied, and no such 
captain as captain Fisher, who charges him (as his en- 
sign) with mutiny, nor no such ensign as ensign Dillon 
in the world, as far as appears to this court. 



Again, this was to be a rifle corps: whereas it is ad- 
mitted that there never was a rifleman nor a rifle in it« 
The law however is not to be cheated in this manner. 
If immunities, such as exemption from juries, and other 
great privileges are given to any body of men, and they 
are permitted to leave the beats of their militia, to 
choose their officers, and be indulged in their own 
wishes and fancies, it is not from favour or partiality 
that they are to be a privileged band, apart from their 
fellow citizens. No, but it is in consideration that they 
render some useful equivalent to their country : such 
as providing themselves with cloathing, arms, and equip- 
ments, at their own expense. If they profess to be cav- 
alry, it is that they provide themselves with horses : to 
be riflemen, that they furnish themselves with rifles, and 
learn, moreover by practice and exercise, the skill and 
art that gives to that arm an advantage equivalent to the 
indulgence the law gives them. The contrary would 
be an imposture, and a fraud upon the law and upon their 
fellow citizens who continue to serve as privates in their 
militia beats. Therefore, though there may be rifles 
without men, and men without rifles, yet a battalion of 
riflemen, without a single rifle is nonsense ; and no 
court can intend against a prisoner so far as to supply so 
material a defect. On the contrary, all these gentlemen, 
officers, non-commissioned officers, and privates, instead 
of accusing one another, are bound to go back to their 
militia beats : captain Fisher as well as ensign Dillon, and 
lieutenant Tate, and all, are fineable for every parade at 
which they neglect to appear. The law will not then 
compel them to serve two masters ; nor when it com- 
mands their services in one corps will it punish them 
for offences in another, in which their association is 
perfectly gratuitous* So much for rash unguarded ac- 
cusations : so it is that we sometimes go for wool and 
come home shorn. 

In turning over the possible objections that might be 
raised in so plain a case, I doubted whether it might not 
be said, that the whole corps might be taken in as one 
company > and then, if there were thirty men in the 



10 

tvhole, including eight non-commissioned officers-, ■ the* 
law should be satisfied. But that seems too absurd ; as* 
there being four companies in the battalion, each having 
three com missioned, and eight non-commissioned offi- 
cers, there would be in all forty-four officers ; whereas 
deducting the eight non commissioned officers, there 
would remain but twenty-two privates, exactly one 
private for two officers. 

Here Mr. Sampson w T as told that he need not insist 
oi> that topic, as it would not be urged. 

But over and above this, if captain Fisher will not 
deny his own hand- writing, here is a roll, of which the 
preamble, written by himself, is in these words. 

Captain Fisher being called on admitted his hand- 
writing to the following preamble. 

* c We the subscribers hereby bind ourselves to each- 
other, and enrol ourselves for the purpose of filling the 
vacancy occasioned by captain Fisher's disbanding the 
first company of the Republican Green Riflemen, and 
pledge ourselves to obey such officers as we shall choose 
(wh.ch shall be done when twenty- five have signed this 
roll) they and we conforming to the rules and regula- 
tions already established in the first battalion of Repub- 
lican Green Riflemen,, commanded by major M'Clure, 

New- York." 

This preamble is followed by a number of signatures. 
And captain Fisher having thus, on the 11th of June, 
disbanded his company, and raised another in its place, 
charges Mr. Dillon with mutiny and un-officer-like con- 
duct, as his ensign, on the !^7th of June, sixteen days 
after he had himself disbanded him and his men. If 
this thing were related elsewhere, would it, could it be 
believed, that such a charge was for a moment listen- 
ed to. 

Having gone through the titte of this piece, let us see 
whether the body is conformable to the head. I think 
they will be found in perfect symmetry. 

" Viz. for Mutiny." 

Much, says my Lord Coke, may be understood by a 
videlicet, it is happy that it is so :• for unless this viz-. 



11 

means something, the whole of what goes before and 
after certainly means nothing. 

Mr, President, and Gentlemen of the Court Martial, 

MUTINY is one of the gravest crimes with which a 
human being can be charged. It is punishable, like the 
blackest felony, with death, by the seventh article of war 
for the government of the army of the United States : 
and by the eighth article of the same, any officer, non- 
commissioned officer, or soldier, who being present 
does not use his utmost endeavours to suppress it, or 
does not give instant information when he comes to the 
knowledge of it, may be punished with death. Not 
only then, if this charge be true, is Mr. Dillon punish- 
able with death, but lieutenant Tate, who was present, 
may also be punishable with death. Is not this bur- 
lesquing law and common sense ; and is the peace of the 
community to be disturbed and the citizen to be vexed 
with such extravagant accusations? 

At the sound of such a charge as mutiny, against a 
fellow citizen, the blood runs cold, and the imagination 
trembles to hear the horrid deed announced. Is it mur- 
der? Is it conspiracy ? Is it fire ? Is it sword ? Is it 
midnight surprize, destruction, and slaughter? No! 
but it is a declaration made by " the said Robert, in the 
presence of lieutenant Tate," but so secretly that the 
prosecutor himself does not pretend to say when nor 
where, nor apropos of what, nor to whom made, that 
he, the said Robert, "could and would take, from the said 
battalion, sixty men." That he could and would take ! 
This is then a declaration in the potential mood and the 
imperfect tense. If the prosecutor had been in the in- 
dicative mood and perfect tense, he would have pointed 
out more distinctly what he meant. It is happy, how- 
ever, that if the prisoner could or would take the men, 
he could not take the rifles, for there were.none. But 
where or how would he take them ? Was it to take 
them prisoners in war by storming their quarters, or 
was it that he would take them to sup at the tavern^ 
Who can say ? 



12 

Sir, it is not for every thing that a man says he could 
or would do, or what he could or would take ; no more 
than for what he should or ought to do, or should or 
ought to take, that he is to be dragged before a court* 
martial to take his trial as a mutineer. 

But there is more of this declaration in presence of 
lieutenant Tate, viz. " That the said Robert did parade 
a number of men" (without naming any one indi- 
vidual) u in the republican green uniform" (which I 
have shewn is no uniform) " contrary to law" (and 
no man knows what law) " and without the consent 
or permission" (but it is not said against the consent 
or permission) '* of his superior officers" (and who 
were his superior officers ?) Was he not disband- 
ed by captain Fisher himself ? Was not his company 
disbanded ? Was not another company raised by cap- 
tain Fisher in their place? Will captain Fisher so 
perversely insist on his own faults, as to say that he 
took upon him to disband a company he had no right to 
disband, and to raise one he had no right to raise ? I 
hope not, I have always had a friendship for captain 
Fisher, and I wish him too well to suffer him, if I can 
prevent him, from succeeding in an intemperate charge, 
where his success must subject him to instantaneous 
arrest, trial, and punishment. If then he is innocent, 
as I hope he is, it was because he had a right to disband 
the company, and because without his interference the 
law had already done so. And this being so, by what 
strange infatuation then does he now come forward to 
charge Mr. Dillon with an after-done fact, as ensign in his 
company ? And what superior officers after that had Mr. 
Dillon ? Must he be an ensign for no other purpose in 
the world but for punishments's sake ? He is not en- 
sign Dillon as by his commission he was appointed, to 
command in the battalion of riflemen attached to the 
first brigade, because his company was incomplete and 
disbanded de facto and de jure : but still he is to be 
captain Fisher's ensign Dillon, or rather the scape goat 
of the company, to take upon him all their sins, to be 
punished with the pains of mutiny for their misdeeds, 
lie is ensign Dillon to have no men to command, but he 



13 

is ensign Dillon to have superior officers to obey. If 
this be ensign, heaven keep all honest and good men 
from ensigncies. 

It seems, however, he made a farther declaration, but 
whether to the sun or moon, to the wind or to the waves, 
history has not said nor has the ear of man heard. 
Whether it was in New- York or New South wales ; in 
St. Petersburg or in Bengal ; there is not even a videli- 
cet to say. But he further declared that his party (and 
what party were they ?) why his party in the present 
contest (and what contest was that ?) No matter, he de- 
clared in the presence of lieutenant Tate, that his party 
in the present contest, or the republican green battalion 
(and there is no such battalion) must fall. Dreadful 
denunciation ! ! ! 

I am at a loss to conceive the extent of this threatened 
calamity. I have heard of the battle of the books. I 
have read of that of the frogs and mice ; but when I 
read these charges I was inclined to thank heaven that 
there was one modern campaign in which there would 
be no blood shed. For as nobody ever heard of this 
party or this present contest, and as there was no such 
battalion, I rejoiced that war had began to lose its san- 
guinary character, and I thought seriously of turning 
soldier myself. 

Now, sir, w r e have disposed of the mutiny of ensign 
Dillon, w 7 e will proceed to the next offence. 

Ungentlemanly and unofficerlike conduct. 

Now if Mr. Dillon was not an officer, what right has 
any court to try him for being unofficerlike. Arid 
then as to being ungentlemanly, he was not bound by 
any law of this court to be gentlemanly no more than to 
be lordly. And, as surely as you could not try him for 
not being like a lord, so surely you cannot try him for 
not being like a gentleman. Mr. Dillon is at present a 
merchant in Broadway, and pursues his trade there. 
He has as good a title as any gentleman- — he is a citizen. 
If he fulfils that character well, no man has a right to 
accuse him. If he chooses to behave over and above 
like what, in foreign countries, they call a gentleman ; 
though what that is no law here or there has defined, 



14 

*hat is his own affair. I understand that he does adopt 
that fashion pretty much, and he is free to do so. He 
has a right as an American citizen to be like a gentle* 
man, or he has a right to let it alone. If a man pays 
his addresses to a lady, and subjects himself to her 
laws, she may exact it of him that he pair his nails, 
learn to dance, and make a bow ; she may cashier or 
disband him for non-compliance with her commands. 
But where is the law that gives to any thirteen field 
officers or -captains, of whom nine shall be a quorum, 
the right to call before them a simple merchant in 
Broadway, and try him and punish him for not being a 
gentleman. Such a court would be indeed a court of 
chivalry; but the age of chivalry is gone. It would be 
J ike a court of enbroachment of court armour \ but those 
courts are obsolete. If there is law for it, let it be 
■shewn — I cannot find it. No more than I can the law 
which would enable Mr. Dillon to hold a court, and 
try the honourable individuals who compose this court, 
for not being esquires or esquire-like. 

But supposing this court had such jurisdiction, see 
what the overt acts of ungentlemanly and un-officer- 
like conduct are. 

'* That on the nisfht of the 27th of June last past, 
(just sixteen days after captain Fisher dissolved his com- 
pany) at an election of a commissioned officer (and what 
is meant again by electing an officer that was commis- 
sioned) did insultingly call (and when and where is a 
secret) the officers of the aforesaid battalion, tyrants 
and orangemen, and other ungentlemanly expressions." 

Sir, tyrants is not by any means an ungentlemanly ex- 
pression. It is much used by senators, parliament men, 
politicians, and still more by poets, rhetoricians, and 
other poor gentlemen; and as to orangemen, although 
some of us may know of such a tribe, who had a very 
mischievous consequence in a little country far away, 
thank God here they are too insignificant even to be 
known or noticed in courts of justice. But this I know, 
that they were the party that assumed to themselves the 
exclusive title of gentlemen, while most of us were 



15 

called by no higher style or dignity than the swinish 
multitude. 

Let us then proceed. " That he did seduce certain 
soldiers from sundry companies.*' Now nothing is so 
uncertain as who these certain soldiers from sundry com- 
panies were. As a merchant he may be made debtor 
to sundries, but a military man he is not bound to open 
an account of sundries. " And held out as a seduction 
to the commissioned and non-commissioned officers.'* 
To the commissioned and non-commissioned officers- 
Why sir, that is to all the officers in the world, for 
they are all commissioned or non-commissioned, and 
none being specified all must be understood to be in- 
tended, " That if they would depart from their duty, 
and join in his disorganizing scheme, they should at 
least hold their respective ranks in his corps, that they 
now hold." 

The seduction was violent ! Quit your corps, give up 
your commissions, join in my disorganizing scheme* 
and for so doing you have as good rank as you have in 
your legally constituted corps. That is to say, here is 
an opportunity of playing the rascal gratis, and you may 
now have the same rank as a disorganizer, that you have 
already as a good citizen and an honorable soldier! 
Sir, when the arch fiend went seducing he offered king- 
doms, earthly glory, power, and riches. But ensign 
Dillon offers his followers nothing but what they had 
before. 

I have now, Mr. President and Gentlemen of the 
Court- Martial, gone through these charges. It is a gocd 
test, depend upon it, whether any proposition be rea- 
sonable or not, that the most artless statement of it 
produces laughter. Is it then upon charges so absurd t 
that a fellow citizen is to be molested, to be brought 
with all solemnity before a sworn tribunal, to be fcikeii 
from his more lawful and profitable occupations, his 
affairs to stand still or fall into confusion in absence, 
whilst he (Oh, wonderful absurdity) is taking his trkl 
for MUTINY ! ! ! 

The exceptions I have taken are free from subtil h y,. 
sophistry or quibble. Thq first dawn, of reason would 



16 

suggest the same. The simplicity of an infant would 
urge them. Charge a child with having told a lie : it 
will ask spontaneously what did I say ? where was it ? 
to whom did I say it ? where did 1 say it ? And yet 
when I object that neither time, place, nor person. is 
specified, and therefore no opportunity given to the de- 
fendant to meet the accusation, it is perversely urged 
that I am quibbling, or trifling, or making parade of my 
abilities. And am I that man, who, after twenty years 
study of my profession, would seek to make a character 
for abilities by urging what is in almost the first page of 
every elementary treatise or institute of the law. No 
sir, but my mortification or warmth, if I have shewn 
any, is from the humiliating necessity of being obliged 
to argue such principles. A fish is not more unnaturally 
circumstanced out of the water, than a lawyer is out of 
his element when obliged to talk at all upon those un- 
deniable positions, which natural reason first suggested, 
long experience has approved, and law confirmed. And 
if this trial, in spite of all I have urged, proceed, it 
will shew how much confusion, not to say injustice, 
must arise from putting in place of wise and settled 
principles of law, the vague determination of the mo- 
ment or the occasion. And if men are badly off with 
laws and luwyers, how much more insecure they would 
be against the passions and prejudices of each other, 
were there none. 

The judge advocate answered shortly to these argu- 
ments. With respect to the certainty required of time, 
place, and person, he said the prisoner could receive no 
injury, as they were facts within his own knowledge; 
and he must of course be prepared to repel the charge 
if it was false. He said there might be a delicacy in 
specifying the persons seduced. The prisoner's coun- 
sel replied that there would have been more delicacy in 
never having brought such charges, and that it was a 
strange thing, when a prisoner denied the facts altogeth- 
er, to say that he must know them because they were 
withift his own knowledge. What, did the revolution- 
ary tribunals, committee of public safety, or those tribu- 
nals as sanguinary as either, of which some of us could 



17 

speak feelingly, ever do more than this ? The court 
was cleared of the prisoner, his counsel, and the bye- 
standers. After some time spent in deliberation the 
doors were opened, and it was announced to the prison- 
er's counsel, by the president, that certain passages had 
been expunged from the charges, and that they now 
stood thus : 

" For Mutiny. The said Robert did parade a num- 
ber of men in the republican green uniform, contrary 
to law, and without the consent or permission of any of 
his seperior officers. " 

1 ' For Ungentlemanly and Unofficerhke conduct. And 
that he did seduce certain soldiers from sundry com- 
panies of the aforesaid battalion, and held out as a seduc- 
tion to the commissioned and non-commissioned officers, 
that if they did withdraw from their duty and join him 
in his disorganizing scheme, they should at least hold 
their respective ranks, in his corps, that thev now 
held." 

What the deliberations were that led to this conclu- 
sion, the reporter cannot pretend to state, they having 
taken place with closed doors, and the members accord- 
ing to their oath of secresy being bound to conceal the 
opinions of each other, and their own. 

It was also announced to the counsel, that the court 
had determined to consider the brigadier general's or- 
der as prima facia evidence of jurisdiction, unless 
refuted by some substantial ground. And the desire of 
the court was intimated to the counsel that he should 
confine himself to the construction of the thirtieth sec- 
tion of the militia law, touching the disband ment of 
the company, upon which point it was willing to hear 
him. 

The counsel said he was ready to satisfy the court 
upon that point, but could not consent to waive the 
other objections which were full as solid. He then read 
the latter clause of the thirtieth section in these words : 

" And that if any company of artillery, grenadiers, 
light infantry, troop of horse, or volunteer corps (except 
in cases otherwise directed by this act) shall not have 

c 



18 

thirty men (including eight non- commissioned officers)- 
in uniform, according. to law, within one year after such 
company, troop, or volunteer corps has been organized,. 
or the receipt of the commission by the captain or com- 
mandant of such company, troop, or volunteer corps r 
such company, troop, or. corps,, shall be disbanded, and 
the commandant of the regiment shall thereupon report 
such disbandment to the commander in chief, who shall 
publish the same in general orders ; and that whenever 
any such troop, company, or volunteer corps shall be- 
come disbanded, the officers appointed to the same shall 
return to the beats of the several companies within 
which they severally reside, and be liable to do duty 
therein." 

It is clear from this that the commissions of the offi- . 
cers are conditional. They undertaking to raise a 
company of thirty men, including eight non-commis- 
sioned officers ; and a reasonable term is given them to 
fulfil their undertaking. If they are not able to do this> 
then the officer? are to be no longer officers, but to 
return to their militia beats. Nothingbeing said in this- 
section of the privates, it is presumable they are not 
supposed to be absent from their militia duty, or ever 
to have been exempt from it. , Then the law, by a calm, 
and< gentle operation, puts every man in his place, and 
says,- the company shall be disbanded, and gives the 
word of command, to officers and non- commissioned 
officers,, privates and all, from the centre to the flank.* 
— « AS YOU WERE> 

The law having thus disbanded the company, it be- 
comes necessary that the fact should be publicly notified, 
and after the act has said that the company shall be- 
disbanded, it proceeds to provide for the consequence 
of that disbandment, as it relatesto the general service. 
And -the words are very unequivocal, sl and thereupon,'* 
that is*, upon such disbandment, the commandant shall, 
report. And for fear these words should not be ex- 
plicit enough,, it says, further shall report upon such 
chshandment. Will it be urged that the words *' shall: 
thereupon report upon such disbandment" mean to- 



19 

report upon a thing that has not yet talten place. If 
#ach dUbandmeni had not already taken place, how report 
upon such disbandment. The concluding sentence shews 
it still stronger, for it says whenever such company 
shall become disbanded, but not when it shall be reported 
disbanded, the officers shall return to their beats in the 
militia. 

If I be light in this, Mr. Fisher may thank the 
benignity of the law, tiiat the same measure of rigour 
is not dealt to him that he would deal to the prisoner, or 
else he might be convicted of mutiny or ungentlemanly 
•conduct, lor seducing the militia men from their res- 
pective beats. 

Suppose the officers are loth to go back asprivates 
to their militia beats. Suppose the commandant fears, 
for want of full companies, to be obliged to lay down 
his honours, shall the law for that be repealed, and the 
country robbed of its defence ? No: these officers were 
like their fellow citizens, privates in the militia, their 
ambition, with which I find no fault, prompted them to 
become officers, they promised that in return for that 
honour they would raise so many men, equipped in a 
particular manner for the public service, at their own 
■expense, and to facilitate their enterprize, their privates 
were to have exemption from juries, the choiee of their 
officers, the following of their own whims, and what 
not. But it was not out of favour or partiality for them 
that they were to have these indulgences, and to make 
a band apart from their fellow citizens ; it w r as on solemn 
condition of rendering publie service to the country, 
of equipping themselves at their own expense ; if they 
were to be volunteer cavalry, to buy them selves -horses 
and suitable equipments — if riflemen — rifles ; and that 
they should practice and exercise with that particular 
arm, so as by their skill and knowledge to give the 
constitutional army the advantage of having certain 
corps well skilled in that particular warfare. But if so 
far from that the whole battalion of riflemen never did 
furnish one rifle, and the whole company never consisted 
-of thirty men, they are like obligees in a bond with 



20 

condition : the condition once forfeited they require no 
further ceremony. And as well might it be said that 
if the commandant was ordered to report the killed in 
battle, would the men be less dead because they were 
not reported so ? 

The clause in the 27th section, which, under similar 
circumstances disbands the volunteer cavalry and flying 
artillery, says, that " if in one year from the time of 
such organization," &c. (exactly coinciding in meaning 
and intention) fi the company shall not consist of forty 
men" (differing in nothing but the requisite number 
of men) " duly equipped according to this act, the 
same shall be deemed actually disbanded, and the officers, 
non-commissioned officers, and privates, shall from 
thenceforth be liable and subject to perform military 
duty in like manner as if such company never had been 
organized." And not a syllable of any report, which 
shews that the report is not necessary to their being 
actually disbanded, since in this section, and cavil itself 
cannot separate the intention of the legislature, in the 
one and in the other instance an actual disbandment 
takes place without any report at all. 

There is a proviso in the ninety-seventh section that 
might alter the case, if the officers could shew their 
case within it, as all who take advantage of a statuto- 
ry proviso are bound to do. It says, "that no uni- 
form company organized within eighteen months before 
the passing of this act, shall be disbanded for not hav- 
ing the competent number of men uniformed and 
equipped, at any parade of inspection within one year 
after the passing of this act : provided, the officer com- 
manding such compan}' shall on or before the first day 
of July next, certify to the commander in chief, that 
such company could not procure the articles necessary 
for uniforming and supplying the same." 

I sincerely wish that the corps calling themselves by a 
name very agreeable to me, if it could satisfy the law, had 
brought themselves within this proviso. I have always 
taken pride and pleasure in the appearance, public spirit, 
and demeanour of the republican greens : I wish to re- 



21 

main a stranger to any dissentions which may fall out 
amongst them, and shall never be the man to widen 
any breach among my countrymen, or to run clown any 
body of them, but I am here counsel for Mr. Dillon, 
and with God's blessing will defend him against undue 
accusation as manfully as lies in me. 

The judge advocate answered, maintaining, that their 
was no disbandment till after the report of the com- 
mandant, and the publication in general orders by the 
commander in chief; that until then Mr. Dillon was 
by his commission an officer, answerable to a court 
martial for his conduct as such, and that therefore as 
far as respects his person the court has jurisdiction. 

The court w T as cleared, and upon the return of the 
prisoner and his counsel, it was announced to him that 
the court would proceed peremptorily to hear the 
evidence, at three o'clock, p. m. of the same day. 

The counsel said he was sorry to be precluded upon 
that point, as he had during the deliberation of the 
court, inquired of several gentlemen versed in courts 
martial, what the practical interpretation had been, 
and that major Van Hook and adjutant Graham, both 
present, were ready to give testimony that in the 
second battalion, the officers and privates who under 
such circumstances of not having completed their com- 
panies in the limited time, neglected to return to their 
militia duty in their local beats, w ? ere always fined with- 
out any attention to a report by the commandant. It 
would be a serious inconvenience if there should be 
one law in one battalion, and in another a different one. 

August 23d, 4 o'clock, p. m. 
First witness for the prosecutor, John Patterson. 
Had seen the prisoner about three or four weeks ago, 
parade about sixteen or eighteen men of the republican 
greens in uniform, many of the men so paraded belonged 
to regular companies of the battalion, and some to the 
company of which witness was a member. Being asked 
if he knew any of them , and if so to name them, he named 
Michael Landy, Thomas Scott and Hugh M'Garraghan. 



22 

Could not-say whether it was the prisoner or some other 
person who ordered the men out to parade, and it was 
since the disbanding of captain Fisher's company (of 
which prisoner had been ensign.) Witness belonged to 
captain Fisher's old company, but had signed no arti- 
cles with him for his new one. The parade was in the 
ball alley of John Kehoe, who was a member of wit- 
ness's company. He could not say who enrolled the 
$nen, and being questioned on behalf of the prisoner, 
•whether the parade he alluded to interfered with any 
duty of the men in any other corps, answered that he 
could not say it did. Witness further said he rather 
guessed the men were brought there by Mr. Dillon's 
orders. He did not know that any of the men who 
were there paraded, ever afterwards attended parade or 
did duty in his company. Mr. Dillon had appeared 
about two weeks -after the new company was formed as 
an officer, went along the ranks and fixed the guns for 
-some of the men. He stated that ensign Dillon when 
parading the men at the ball alley, wore a coat resem- 
bling their uniform. He was called captain that night: 
cannot say positively whether he acted as captain or 
ensign, but he heard him called captain. Witness 
kneW of no order contrary to that parade, nor that k 
interfered with any other duties of the men who were 
paraded. 

Being asked whether there was not a Mr. Haynes be- 
fore that time elected ensign in Mr. Dillon's company, 
he admitted that there was. Mr. Haynes was elected at 
•the Union Hotel, afterwards the witness said it was at 
Oilman's ; after some explanation it appeared that there 
was a meeting at Gilman's to appoint a committee to 
notify major M'Clure of the election, the election hav- 
ing previously taken place at the Union Hotel. Mr. 
Hayncs's election was notified to major M'CIure, who 
made no objection that witness knew of. It was also 
notified to the prosecutor, captain Fisher, who ratified 
it. Witness also admitted, on cross-examination, that 
he understood the disbandment was to get rid of ensign 
Dillon. 



23 

The very night that captain Fisher disbanded hh 
company the election of captain and lieutenant took 
place, but a vacancy was left for the ensign. Captain 
Fisher and lieutenant Tate were re-elected to the same 
posts of captain and lieutenant - r the place of ensign Dil- 
lon was afterwards supplied by the appointment of Mr, 
Hay nes. 

The examination of this witness was desultory,, from 
the number of questions from different quarters not 
reduced to writing. It was not gone through without 
difficulty and opposition,, which shall be noticed here- 
after. 

Second witness for the prosecutor, James M'Keon. 

Never had seen either of captain Fisher's companies, 
the old or the new. Never saw captain Dillon parad- 
ing men : merely saw a meeting at Kehoe 7 s in Henry- 
street one evening, but he could not exactly mark the 
time. 

Being questioned whether he knew of the disbanding 
of the company by captain Fisher, and of whom he 
learned it. He said it was not the prisoner, but captain 
Fisher himself who told him of it. Captain Fisher 
told witness he had discharged his company, that he was 
now no captain, nor had no company. 

N. B. During the foregoing examination two of the 
members of the court-martial, major Gardner and 
captain Pinckney kid absented themselves, which the 
prisoner's counsel perceiving, begged that the circum- 
stance might be noted in the minutes. These two 
gentlemen continued absent the remainder of that day. 

Third witness for the prosecutor, James M* Curdy* 
Was an ensign in and is now ensign in 

the fourth company of major M'CIure's battalion : three 
or four weeks ago, on a Monday evening,, he saw a 
number of men, fifteen or twenty, in the ball alley, in 
the republican green uniform, and a number out of 
uniform. Mr. Dillon was in uniform, and had charge 
of the right platoon. Witness does not know by what 
authority they were there. Doctor M'Neven was there 
and acted as an officer, but not in uniform. Witness 



24 

knew two of the men to belong to major M' Clare's 
battalion, and being desired to name them, mentioned 
Hugh M'Garraghan and Landy, who belonged to his 
own company. Captain Fisher hereupon corrected the 
-witness and affirmed that Landy belonged to his (the 
prosecutor's own company.) The witness did not give 
any positive explanation, and the examination continued. 
Being questioned whether he knew of Landy 's having 
been orderly serjeant in captain Fisher's old company — 
did not know whether he was or not. Asked if he 
knew any others of the battalion who were there — an- 
swered that there were others but he did not know their 
names. 

To a question on cross examination whether he knew 
of the seduction of any men, or the withdrawing of 
any men from any legal duty — he answered that he did 
not. 

It was Dr. M'Neven, he stated, who had the com- 
mand over Mr. Dillon and all the rest. 

Witness knew of no orders ever given by major 
M'Ciure, or any of his officers, against the parading 
of these men on that night. 

The counsel for the prisoner now put to the witness 
the same question put by the member (captain Christian) 
to the first witness. Whether it was the night of any 
legal parade of any company in major M'Clure's bat- 
talion — and he answered in the negative. 

The court then adjourned to Thursday, August 24, 
at 3 o'clock p. m. 

Thursday, August 24, 3 o'clock p. m. This day 
the court opened pursuant to adjournment, all the mem- 
bers being present. 

The minutes of the last day were read over by the 
judge advocate. The counsel for the prisoner compared 
them with his own notes, and objected that several 
passages were omitted which he begged might be re- 
corded by the judge advocate. The judge advocate 
said that he might not have taken down every word each 
of the witnesses spoke, which would be useless, even 
if it were practicable, but that if he had written less 



25 

than the counsel, it was because he did not think it ne- 
cessary to take down more than was material. The 
prisoners counsel admitted that if the whole of what 
each witness said was taken down, it would go a very 
small way in support of the charge, but the greater 
part of it was very material for the prisoner's defence, 
and it ought therefore to be recorded, that in case he 
was put to the necessity of an appeal, the judge to 
whom that appeal was made, might see what the nature 
and true bearings of the testimony was. The judge 
advocate, as prosecutor, might think that immaterial, 
which the prisoner's counsel might conceive most mate- 
rial : and since that appeared to be the case, the fairest 
wav would be to indulge both parties alike. He 
therefore should request of the judge advocate to write 
down what he thought material, for himself, and what 
he thought immaterial would satisfy the prisoner vvefl 
enough. 

During this discussion some of the members inter- 
fered with warmth, one of them (Captain Davis) ad- 
dressed himself personally to the counsel, and observed 
that he had taken up the time of the court in trifling 
objections, in order to make a display of his abilities. 
The counsel in his turn addressed himself to the 
president, and read the seventy- fourth section of the 
militia law. 

44 That all commissioned officers who shall hereafter 
be called before any court martial for anyoftence or 
delinquency whatsoever, shall be allowed to appear 
before said court by counsel, as in cases of criminal 
prosecution for offences against the people of this state, 
in courts of justice," 

When the law says he shall appear by counsel, there- 
fore, it does not mean literally that the counsel shall 
merely shew himself and say nothing. But that he 
shall defend his client as is done " in courts of justice, " 
that is, in the courts well known and sanctioned by the 
constitution of the country. What the latitude of de- 
fence and the freedom of speech allowed in courts of 

c 



26 



justice is, those who know the law best f best know, 
and those who respect it most, most respect. 

By the militia law, passed the 29th of March in the 
present year, all other acts on the subject are repealed. 
That law now constitutes the entire code by which we 
must be regulated. Ail the time I am charged with 
having wasted has been taken up Li entreating the court 
to look into that act, and to see by what part of it this 
trial could be sanctioned. Hereafter it may better 
appear whether I was right or not: as if a sentence 
should, in spite of all I have urged, and all I have been 
prevented from urging, pass against my client, I must 
in duty appeal from it, and if I am found to be right, 
more time still must be wasted in correcting the errors 
of a hasty determination. 

If any member thinks this language disrespectful, 
perhaps he is not aware that when the first judge of 
the bench to which the people have entrusted the su- 
preme jurisdiction in this state, decides a point of law, 
and the youngest member of the bar chooses to except 
to his decision, that judge is bound to sign, with his 
own hand, a bill of exceptions, in order that the facts, 
truly represented, may be brought before the very court 
of which he is a member, that his determination may 
be reviewed, and corrected if necessary. These judges 
never arrive to the high situation they hold, till they 
have qualified themselves by arduous studies and long 
practice, and given proofs of knowledge and ability : 
yet no one of them ever utters a peevish or reproachful 
word against the counsel who objects to his opinion. 
If so much caution is necessary in tribunals where the 
solid rules of law and evidence are best understood, the 
legislature has done well to allow a prisoner counsel ; 
and an appeal in cases where the counsel thinks himself 
right, and yet is voted to be in the wrong. 

I will respect the court, sir, as far as I am bound to 
do, when I know its determination : but I cannot submit 
to be interrupted, talked at and reproved, by individuals: 
because that would be to abandon the rights of my 
client, and the duties of my profession. And were I ever 



27 

so indifferent to the respect which I think due to myself, 
I owe it to the bar to which I have now the honour to 
belong, not to let their just privileges perish in my 
hands. 

It is rare that thirteen men, unless where they are 
bound by the imperative voice of well defined law, 
agree upon any moral topic. What one might think 
guilt another might think innocence, and if courts were 
not confined to their jurisdiction, no man could be able 
to say when he was walking the streets that he was not 
offending some one who might afterwards be his judge. 
It also often happens in numerous bodies, that he 
who speaks first speaks worst, because upon least 
reflection. Therefore if a member interrupts me un- 
reasonably, how do I shew my respect to the court ? 
Why by paying no respect to that interruption, suppos- 
ing it not to be the sense of the court. 

Oue of the members here observed that the counsel 
had no right surely to complain of the want of a patient 
hearing. And captain Davis added that he had spoken 
six words for the judge advocate's one. 

The counsel answered that patience was a virtue in 
kim that exercised it, and that virtue was its own reward : 
but that if by that patience any obligation was meant to 
him, he was sorry to be ungrateful, but he should have 
thanked the members more for paying attention to what 
he said, than merely for hearing him, which they could 
not well avoid, as he had spoken loud enough. He did 
not come to count words with the judge advocate, but 
to maintain his client's cause by as many words as were 
necessary. He was sorry that too frequent interruptions 
had rendered so many words necessary : as after answer- 
ing each interruption he had to return to the point where 
he had left off. He was sorry that so many words were 
thrown away in combating topics that ought not to have 
been brought forward or supported, and facts that ought 
not to have been denied. The judge advocate had met 
with fewer impediments, and had less need to expend 
words in bringing members to agree with him. 



. 28 

The office of judge advocate was anomalous in the 
constitution, and it was hard to define his rights or his 
duties. The name of his office is incongruous, and if 
the first that used it had been an Irishman, it would 
have been called a blunder. It is a triple office, as the 
books define it. He is counsel for the prosecution, 
counsel for the prisoner, and finally he is judge! In 
his first capacity, here, as I have said, the judge advo- 
cate had* no need to say much; thinking, perhaps, that 
he was anticipated, and enough had been said without 
him. In his second capacity of counsel for the prisoner, 
the law having allowed the prisoner his own counsel, he 
would release him from the task of speaking for him. 
In his third capacity of judge, it was more decorous to 
listen than to talk, for " in courts of justice," to use 
the words of the section which lays down the rule for 
the admission of counsel; in courts of justice, the order 
is, for the counsel to speak and the judges to hear: and 
there.it would be thought an inversion of the true order, 
for the judges to stop the' counsel in order to talk 
themselves. The wise and grave judges of our benches 
do often, it is true, stop counsel in their arguments, but 
it is because they are already of their opinion, and need 
no argument to convince them. They then patiently 
hear what the party has to say upon whom they think 
the difficulty lies. At all events there is the less reason 
for the judge advocate to be over anxious, because after 
he has argued any point with his adversary, (the prison- 
er's counsel) in his capacity of prosecutor, he knows that 
the prisoner and his counsel will be ordered to withdraw, 
while he stays behind to give .the court his real opinion 
as judge, whether he truly was in earnest, whether he 
was in the right or in the wrong. 

I do not dispute the propriety of such proceedings, 
when the exigencies of war, or the discipline of a stand- 
ing army, require more summary proceedings. Those 
proceedings then, arise from the necessity and are part 
of the unavoidable evils of war, and its incidents. But 
applied to the militia or volunteers of this country, when 
not on duty, on pay^, or engaged in any military service, 



29 

they are rather strange. For between the age of 1 7 and 
45, every citizen here is of the militia ; and if a mode of 
trial so uncongenial to the constitution, so repugnant to 
its best principles, is too loosely resorted to, and that for 
crimes punishable capitally, this would follow : that the 
constitution would only exist for those who were not to 
shed their blood in its defence. It would still remain for 
the old men, the children, the women, the aliens, and 
the negroes. They would be entitled in all cases to the 
trial by jury and the general law of the land, but the men 
who were, when their country called, to step forward 
and defend the constitution, would for that reason alone 
be deprived of its enjoyment ! 

These arguments were followed by still warmer dis- 
cussions, and the counsel was called upon to state for 
what object he was now contending. 

He said that before he was interrupted he had clearly 
enough stated that the minutes were incorrect and de- 
sired they might be amended. 

It was proposed to call back the witness and re-exa- 
mine him. The counsel begged leave to oppose that. 
So often as the witnesses had been ordered to retire, so 
often had they returned into court. Mr. Patterson was 
there standing before his face, listening to the objection. 
What he had said was faithfully taken down, and now 
became the property of the defendant. It was rather 
reluctantly drawn from him, and he ought not to be 
tempted to unsay it again. Why should there be more 
difficulty in recording what makes for the prisoner than 
what makes against him? 

Being called upon to state in what part they were in- 
correct, he said that almost all the cross-examination of 
the first witness, Patterson, was omitted ; particularly 
where he stated that captain Fisher had ratified the elec- 
tion of Mr. Haynes as his ensign, to fill the place of Mr. 
Dillon. This could not be otherwise than material on a 
charge by captain Fisher against Mr. Dillon for an after 
done act as his ensign in that very company. 

The minutes being corrected in this particular, the 
counsel said he would not insist upon trifling alterations, 



so 

but another omission he considered very material. The 
witness had said, that the parade in the Ball Alley was 
not on the night of any legal parade in any of the com- 
panies in the battalion. Several of the members saying 
they did not recollect this : The counsel said it was mor- 
tifying to be so sure of a fact, so recent, so material, 
and yet to find it questioned. He had not been much 
in the habit of making incorrect notes : he never fabri- 
cated testimony for any witness: his memory could not 
deceive him : and it was written distinctly on his paper. 
A member (captain Christian) put an end to this discus- 
sion by reading from his minutes the question put by 
himself, in the very terms stated by the counsel. The 
counsel thanked the member, as but for his confirma- 
tion he feared the point might have been decided against 
him and he would have had no choice but to submit as 
he had done to the rest. 

A member (captain Davis) rose suddenly upon these 
words, and with great warmth moved that the counsel 
might be restrained from using such disrespectful lan- 
guage towards the court. That from the beginning of 
the trial he had done nothing but insult the court and 
distort the evidence, and in addressing himself person- 
ally to the counsel he used the term prevaricate. 

Upon this the counsel addressed himself to the presi- 
dent, and said that whether this court had jurisdiction 
over his client in this causae, was a point of law to be 
hereafter decided by the due authority ; all courts exer- 
cising jurisdiction at their peril : but whether a gentle- 
man, because he sat there in a military coat, whilst he 
stood as counsel in his proper place, should be therefore 
entitled to use such ungentlemanly epithets to him, was a 
point which needed not the adjudication of the law. He 
would respect the court when its opinions were deli- 
vered to him by the proper organ ; he would respect 
them whilst he remained in court as far as he was bound 
to do ; but as to all extra-judicial and injurious apostro- 
phies addressed to him personally, he should consider 
them as personal insults which must also be at the peril 
ef the party ; and which here or elsewhere he would not 



Q 



I 



suffer. The member repeated his motion that the coun- 
sel might be set down, and was seconded by lieute- 
nant Nisbet and some others. The counsel said he had 
no objection to any course the court might chuse to 
adopt. If the member thought he could prevail he 
might move for his committal, and then the whole could 
be put in a course of fair legal discussion. He had no 
objection to its being brought up either upon a return to 
a habeas corpus or an action at law. He recollected the 
saying of an old member of a court martial, who admo- 
nished a counsellor not to suppose that he was in a court 
of justice: to which the counsel answered mildly, sir, L 
see my error — I stand corrected. But he was cut short by 
the member (captain Davis) seconded by lieutenant N is. 
bet, who moved repeatedly that he should be stopped. 

The president called to order and said it was all very 
improper. Upon which Mr. Sampson observed, that 
the frivolity of the charges, and the errors of the proceed- 
ings, upon which he was confident no sentence of con- 
viction could be supported, relieved his mind from all 
apprehension for his client; and rather than be provoked 
to use still sharper remonstrances, or be exposed to other 
insults, or betrayed into any disrespect of the court, he 
would humbly take his leave. Upon which he retired 
with his client. 

The court was cleared, and after much time spent in 
deliberation, the doors were again opened. The pris- 
oner then presented himself, and begged to know if his 
attendance was necessary, as being now without counsel, 
he did not feel inclined to make any further defence. It 
was observed to him by some members, that perhaps 
his counsel would find, upon reflection, that he had 
been too precipitate — -that he might be full as safe with- 
out any counsel : or if he thought not, that he might 
engage another. He answered that he had made choice 
of the counsel in whom he had most confidence, and 
would abide entirely by his determination. 

The court having deliberated on the course of the 
proceedings, adjourned to meet on Tuesday next, the 
^9th inst. at 10 o'clock a. m. and to proceed in the tria> 
at 3 o'clock. 



32 

N. B. During the proceedings of this day a question 
was put to the judge advocate by a member (captain 
Christian) to this effect. If in an indictment at common 
law, or under a statute, and the place where the offence 
is said to be committed be not mentioned, would the 
court hold the defendant to trial upon that indictment ? 
This question received no answer from the judge advo- 
cate. The counsel for the prisoner barel) observed, 
that in that case, there would be no venue, and there 
could of course be no trial : but as in going through the 
objections, that would come fully up, he wished the con- 
sideration to be postponed : to which the member as- 
sented. The counsel afterwards finding it in vain to 
urge his objections preliminarily, and the court having 
determined to hear all the evidence, the answer to this 
question will be found in the summing up. 

Tuesday, August 29th, 3 o'clock, p. m. 

The members sworn being all present, the minutes 
were read and approved. 

The prisoner's counsel first addressed the court, and 
observed, that since the last adjournment he had taken 
pains to search for authorities, upon the various objec- 
tions he had advanced, and the result was, that he had 
found them all confirmed, by the best authors upon the 
very subject of courts martial. 

The specimen which the court has had, of the charges 
and the evidence, and the great delay of proceedings 
where every thing must be reduced to writing, will pro- 
bably induce it to pursue a shorter road to a conclusion 
than it can by a long protracted examination of witnesses, 
after which the law must be necessarily considered. I 
have already opened the various objections, and am now 
ready to support them each in its order by approved 
authority. 

The first in order is the wrong description of the 
corps to which Mr. Dillon is said to belong. 

The judge advocate said it was too late to make 
this objection, after pleading in chief. A misnomer 
never could be taken advantage of but in abate- 
ment, but that plea had been waved by pleading in chief, 



33 

and could not be set up after evidence gone into Upon 
the general issue and after the court had decided to hear 
the evidence. 

The counsel replied, that if it appeared to the court 
at any stage of the business, that the proceeding was nu- 
gatory, it had the power and he should hope the dispo- 
sition to cut it short* The three first witnesses, pro- 
bably the most material, had been examined : and un- 
less the remaining ones contradicted them, in which 
case, the matter would not be mended) there is nothing 
like a criminal charge made out. Why then punish all 
concerned by a suffocating imprisonment, when it is 
evident the prisoner must be discharged. For my part* 
I am so far wasted already by this trial, that I fear the 
coroner will have to summon twelve other citizens to 
find by what visitation I came by my death. 

A few authorities to the points stated, will, I think, 
convince the court of this, and we shall then all have the- 
benefit of a general goal delivery. 

The members were at first apparently divided, a's to 
hearing the authorities read : one member (captain 
Christian) moved that he should be suffered to produce 
his authority, and it was acquiesced in. 

The counsel : The first objection in order J.s, that 
upon the title or caption of the charges, Mr. Dillon is 
said to be of the republican green riflemen., whereas 
there is no such corps. Mr. Dillon is, (allowing that 
neither captain Fisher nor the statute has disbanded his 
company) of a corps entitled, " the battalion of riflemen 
of the city of New -York ', attached to the first brigade* 
and whereof major ilf ' Clure is commandant.^ This fact 
will appear from the bare inspection of ensign Dil- 
lon's commission. He then read from the 2d volume 
of M 4 Arthur, on the principles and practice of naval 
and military courts martial, p. 8 and 9, as follows : 

" It is also necessary, in all accusations, that the name* 
surname, rank, or station, and the ship or regiment to 
which the offender may belong, should be clearly spe- 
cified. Should a misnomer, through hurry or inadver. 
tency, have taken place, and that it is discovered on as- 

E 



34 

sembling the court martial for his trial, by its discord- 
ance with the muster books, or otherwise, it is usual to* 
Keep the prisoner under arrest ; and, after the charges 
have been preferred of new, with his name correctly- 
specified, a court martial may afterwards assemble for 
his trial on the specific charges originally brought against 
him. 

a The same rule should be observed 3 in case the per- 
son to be tried was charged with the murder of the de- 
ceased, whose christian or surname might,, through in- 
advertency, be mistaken ; — for instance,, charging the 
prisoner with murdering John instead of William, the 
real christian name ; or Roberts instead of Robinson, the 
real surname of the deceased. These, with many other 
distinctions in indictments, as laid down by writers on 
criminal- law's, however minute or refined they may ap- 
pear,, ought not to be overlooked in articles of accusation 
brought before members of a court martial : though we 
have instances- daily of the technical forms of our crimi- 
nal laws sheltering delinquents from punishment, and 
saving them from the penal consequences of their crimes. 

"" Thus we' perceive the ends of justice may be some- 
tfnaesv partially defeated by the forms of law, when op- 
posed to its substance. Yet they are'so blended and 
interwoven with substantial justice itself,, that forms of 
laws cannot be violated^ without ultimately injuring, 
and perhaps destroying the whole texture of our crimi- 
nal jurisprudence ;. and although the individual guilty 
may occasionally escape, yet, by a rigid adherence to- 
established forms, public happiness and security are ef- 
fectually secured." 

Here, however, not only the true regiment is not 
clearly specified, but one that does not exist is named. 

It is material to give the court jurisdiction that the 
prisoner be a military officer, and therefore the corps to 
which he belongs must be truly and clearly specified, 
and if charges so loose were permitted, a man might be 
tried without end, or as often as a new name or addition 
could be found to indict him by. This exception also? 
going to the jurisdiction, cannot be waved or cured by 



$5 

any neglect of a prisoner; nor is he bound to accuse 
himself, or to furnish the prosecutor with a legal charge 
against himself when he not only denies all guilt, but 
maintains that he was not, at the time'of the fact, spe- 
cified an ensign hi any corps, or a military man, in any 
sense of the word, if he is not of the corps named, 
.or if there is no such, the court cannot intend that he 
is of any other ; and if of none, he is .not amenable for any 
•offence, to a court martial. 

A member (captain S wanton') wished to know the 
opinion of the counsel, as to the effect of this objection, 
chi the proceedings, if allowed and adjudged for the 
prisoner, as a plea of misnomer. 

The counsel.— -Taking it as a plea of misnomer in 
■abatement, the proceedings must, according to the au- 
thority read, be.de novo. The charges amended must 
be preferred anew ? and a new court martial assembled 
for the trial. 

The member. — Have you any precedent of a prisoner 
being discharged from arrest, or a court martial being 
dissolved, and a new one convened, because of a mis- 
nomer ? 

Counsel. — I have no precedent in point with this 
case, nor do I believe the annals of the law will furnish 
any. I wish the prosecutor, if he knows of any such, 
to produce it. I only go upon what the book says, 
" after the charges have been preferred of new, with 
his name correctly specified, a court martial may after- 
zvards assemble for his trial on the specific charges ori- 
ginally brought against him." This court then, which 
may afterwards assemble to try the charges which may 
be preferred de novo, must mean something else than thp. 
court actually sitting, or words mean nothing. And fur- 
ther, if the author meant the original court then sitting, 
he would have used the relative definite pronoun, the 
court, and not said a court, unless he meant another 
court ; for a court and the court can never mean the 
same thing. 

But this is not merely a misnomer, where the defen- 
dant must give his true name or addition, and the 
amendment is of course; here is an impossible addition 



36 

a description of a person not in rerum natura ; which is 
not amenable. Suppose he was indicted as archbishop 
of Oyster -Island, must he not be dismissed, till he shews 
himself bishop of somewhere else, though in fact he is 
not a bishop ? The case I put is in point, for he is 
not a whit more subject to a military court, unless he 
is a military man, and has done a military offence, than 
he would be amenable to a spiritual court, which could 
have no jurisdiction over him for malversation as a 
bishop, nor could he, if he was mad enough to submit 
to it, give such a court jurisdiction over him, but the 
persons who would take advantage of his folly would 
be indictable themselves. 

The judge advocate answered, that the counsel now 
admitted his plea to be bad, even though it were still 
in time ; for a plea of misnomer could only be in abate- 
ment, and pleas in abatement were dilatory, and only 
put the party to amend, and the defendant is bound to 
point out the error, and furnish the prosecutor with a 
better name or addition ; but w r hen the counsel here ad- 
mits that there can be no amendment, he cannot take 
advantage of the misnomer in abatement, for that very- 
reason. Besides, it is but a cavil at best. This corps 
was known commonly by the name of republican 
greens. They called themselves, and suffered them- 
selves to be called by that name, and there never was 
any other corps called so. And where A. permits him- 
self to be called B, he shall not afterwards take advantage 
of the misnomer. 

The counsel replied shortly, that an objection going 
radically to the jurisdiction, could never be tested by 
that criterion, for either there was jurisdiction or there 
was none ; and whether it was that the court had none 
over the person, or over the offence, it was equally a 
ground for a discharge. 

The court decided against the objection, and that it 
was made too late. 

The counsel then moved the court, that, to avoid 
future altercations touching the testimony, each question 
might be put in writing, and the answers as they fell 



37 

from the witnesses be also written down in their own 
words. 

The court ordered that the questions and answers be 
put in writing. 

Two witnesses for the prosecutor were sworn. — 
Thomas M*Kitrick and Charles Eagieson. 

The following general interrogatories were put to alj 
the witnesses hereafter examined by the judge advocate. 

First. — Do you belong to the rifle battalion under the 
command of major M'Clure ? 

Second. — Do you know that ensign Dillon did, at 
any, and what time, within the city and county of New- 
York, parade any, and what number of men, in the 
uniform of the republican greens, and whether any, 
and what number ? 

Third. — Do you know that ensign Dillon, at any 
and what time, within this city, did entice, in any and 
what manner, any man or men of major M'Clure's 
battalion, to join him, the said Dillon. 

Fourth witness for the prosecution, Mr. Thomas 
M k Kitrick examined. 

Said he saw the prisoner, on a Monday evening, be- 
tween two and three weeks ago, in the ball alley of Mr. 
John Kehoe in Henry-street, in uniform, giving the 
word of command to a number of men in the republican 
green uniform. There were eight or ten men or up- 
wards. The greater part were in the republican green 
uniform. Mr. M'Garraghan was fugelman. Witness 
added that it was the manual word of command that 
ensign Dillon was giving, which he repeated often, and 
desired it might be distinctly understood that it w 7 as the 
manual word of command* but not the manual word of 
command we have in Ireland! Which phrase produced 
some good humoured repartee between the counsel and 
the witness. He was also very particular as to close 
motions and open motions, touching which he wished 
to be very exact, being upon oath. (A laugh.) 

The counsel : provided the witness will but move 
on, I care not whether the motions be close or open. 



38 

To the question touching the enticing of men to 
join, said he did not know of his own knowledge* fur- 
ther than that ensign Dillon, after he (witness) had left 
the battalion and resigned, told him he should have the 
same commission with him that he had held in the bat- 
talion : but this he only said in manner of a joke, 

Q, By the prisoner's counsel : You said " after you 
had resigned." What was it that you resigned f 

A. I resigned the command of a company in major 
M'Clure's battalion. 

Q. Who gave you the command of that company ? 

A. The governor. 

Q. Did he give you a commission to command that 
company ? 

A. He gave me a captain's brevet. 

Q. Do you hold any other commission as captain ? 

A. No other. 

Q. Did not you tell the men you commanded that 
you were not their captain, and that they might do as 
they thought proper ? 

A. I bid them good bye when I resigned, on the 
15th of July. 

Q. Was the evening on which you saw ensign Dil- 
lon commanding in the ball room, a day of legal parade 
of any company of the rifie battalion corps ? 

A. I do not know, I did not belong to the rifle bat- 
talion at that time. 

Q. By whom were these men assembled ? 

A. I do not know. 

The above was the substance of this witness's testi- 
mony, as agreed by the parties on the one side and the 
other ; but the witness, who seemed to have expected a 
sharp cross examination, appeared anxious to anticipate 
it, and spoke at some length upon each question, upon 
which the counsel afterwards observed in summing up. 

Fifth witness for the prosecution, M?\ Charles 
Eaglcson, 

Belonged to major M'Clure's battalion when it was a 
single company under captain Gaston, and is now the 



39 

youngest commissioned ensign in the battalion. Ensign 
Dillon called and shewed him two papers, one his com- 
mission from the governor, and the other a new roll. 
This was about the last of June, at his house. He read 
the preamble of the roll, in which were a number of 
wames, his own among the rest; and asked him to sign 
it. It purported to be a new roll for a new company or 
battalion; which, he could not say. 

Q. By the counsel : Did it purport to be an invitation 
to join in a disorganizing scheme ? 

A. He did not use the words disorganizing scheme* but 
lie said the old battalion w-ould break up, and that he had 
better join, when he could do it with credit, and could 
take sixty men from the battalion and make a larger bat- 
talion with them. 

Q. ~ty a member (captain Christian.) Has the con- 
duct of ensign Dillon, when on duty^ been officer-like 
and srentlemanlv ? 

o • 

A. For any thing I ever saw, I never saw it other- 
wise when on duty, I never saw any misconduct when 
on duty, according to my judgment. 

Q. By the counsel : Might he not have been joking 
-with you, as captain M'Kitrick savs he was joking with 
him? 

A. He often joked with me, but w T as not joking- at 
that time. 

Q. Do you know any men whose names were on the 
roll, and who belonged to the rifle battalion? 

A. I do. 

Q. Can you name them ? 

A. Ensign Dillon, Hugh M'Garraghan, William 
Gay nor. There were several others whom I knew by 
eye -sight, but I did not know their names. 

Q. How do you know they were of the battalion ? 

A. I knew their names upon the roll. 

Q. Do you know that captain Fisher's company was 
disbanded, and the reason why it was disbanded? 

A. I cannot tell the reason. 

Adjourned to the 3d instant, at 2 o'clock. 



40 

August 31, 2 o'clock, *». M. 

A letter was read from Mr. Charles Hertford, stating 
that captain Swanton had requested him to inform the 
court, that owing to sudden and severe sickness, he was 
unable to attend this day. 

The minutes of the judge advocate being read over, 
the prisoner's counsel objected that some passages of 
the evidence for the prosecutor were omitted, which if 
the only object of a trial was to convict the accused, 
might not be material, but in the opposite view of ac* 
quitting him might be very material. It was not im- 
possible that an appeal might be brought in this case ; 
it was therefore important tnat the appellate judge should 
have the advantage of knowing as nearly as possible all 
that passed. The great advantage of our constitutional 
mode of trial by viva voce testimony is, that the court 
and jury may judge of the exact value of their testimony, 
not merely from the degree of its intrinsic consistency, 
and agreement with common probability, but also that 
the very looks and demeanor of the witness, his temper, 
bias, over- caution, over- zeal; his phraseology, the de* 
gree of good sense, self- recollection, and even any ex. 
cess of gravity or levity, may all be judged of according 
to that intuitive feeling of truth, which is often a surer 
guide than the most refined ethical rules. Unless care be 
taken to minute down testimony with exact impartiality, 
the judge on the appeal, will have nothing to judge of, 
but a book written by the prosecutor. I do not, God 
forbid, accuse the judge advocate of wilful partiality, but 
I cannot forget, nor perhaps can he, that he acts as pro- 
secutor. I act avowedly for the prisoner. Let there- 
fore the scale be held even between us. We have 
manifestly different perceptions of the evidence. 

The counsel was asked what his objection to the ml- 
nites was. 

He said there was an evident inconsistency in the tes- 
timony of Charles Eagleson, which ought to be noted. 
He first said he knew the men that were paraded by 
sight, but did not know their names : afterwards he 
said he knew them from seeing their names upon the 



41 

roll. This might be material, and should be written 
down. 

The judge advocate opposed this amendment, as it 
was only an attempt to make nonsense of what the wit- 
ness said, and to pervert the fair meaning, and that he 
did not consider himself bound to write nonsense. 

The counsel replied, that it was at least as great a 
perversion to turn nonsense into sense, in order tocoii- 
vict the accused, as sense into nonsense, in order to ac- 
quit him ; neither way was right, but if the judge advo- 
cate was too proud to write nonsense, he was not, and 
had taken it down. 

Several members spoke in opposition to the counsel's 
motion, saying that the witness's meaning was clear 
enough : that he did not know the men by sight, but 
knew their names when he saw them on the roll, and 
that they were names belonging to the battalion. 

The minutes were voted to be correct. 

Sixth witness for the prosecutor, Patrick M'Grath. 

He belonged to the first company of the battalion 
under captain Fisher. Had belonged to the greens 5 
or 6 years : and to captain Fisher's company since it was 
formed : knew nothing of enticing men to join, but what 
others told him. 

Q. Did ensign Dillon never make any application to 
yourself, nor to any other in your presence? 

A. No; only asking if I meant to join the new r corps 
in the Bowery. 

Q. Was there any farther conversation at that time 
about the new greens? 

A. None that 1 remember. Mr. Cooper was present. 
I said, I believed I would not join. Mr. Dillon then 
walked off, saying he would leave me to my captain, 
meaning, I suppose, Mr. Cooper. 

Q. Did you ever see Mr. Dillon, when on duty, 
guilty of any unoflicer-like or ungcntlemanly conduct? 

A. I never did. 

Q. (By a member.) Do you know any thing of the 
disbanding, of captain Fisher's company? 



42 

A* I do not, but What I heard from others. 

Q. (By a member.) What men did you see parade 
in the green uniform? Was ensign Dillon present? and 
did he take any command? 

A. I cannot name their names — some of them be- 
longed to major Ivl'Clure's battalion. I saw ensign 
Dillon marching, them under the command of Doctor 
M'Neven. 

Q. Was Mr. Dillon considered as an officer ? 

A. Mr. Dillon was with them in the uniform of an 
officer, and they all paraded and marched under the com- 
mand of Dr. M'Neven, and obeyed his orders. 

Q. Did you sign any new roll? 

A. I did not sign any new roll in the Bowery, but 
signed one for captain Fisher's company, that I under- 
stood to be a new roll. They told me I was at liberty 
to sign a new roll, and if I did not, that I should not be 
considered a member of the old greens. 
Q. Who told you that? 
A. Serjeant Adams, the orderly serjeant. 

Seventh witness for the prosecutor, Allan Queen.. 

Witness had belonged to the rifile corps, but did not 
at present, Had been twice at Kehoe's ball-alley. Ne- 
ver saw Mr. Dillon parade any men in the republican 
green uniform. Saw Mr. Dillon once in his uniform, 
but cannot say what command he held. Dr. M'Neven 
and he paraded a number of men without uniform, and 
Mr. Dillon had the command of a platoon. It was, he 
believes, 4 or 5 weeks ago. 

The third general question, as to enticing, &c. being 
put to him, he knew not a sentence of enticing any body. 

Q. Did you ever know ensign Dillon, when on duty, 
to behave in an ungentlemanly or unofficer-like manner? 

A. Certainly not. 

Q. By the prisoner's council. What was your mo- 
tive for leaving the greens. 

Here the prosecutor suggested something in a low 
voice to the judge advocate, and the question was ol>- 



43 

jected to, unless the counsel would explain his object in 
asking it. 

To this he answered, that to oblige a party to explain 
in the hearing of a witness, what the intention of his 
cross-examination was, would be to deprive him of the 
benefit of cross-examination, which was meant as a 
means to extract the truth from a witness called by one 
party, and probably less willing to tell what was in favor 
of the other. How often does it happen that the ac- 
cused have no other defence than the privilege of taking 
the witness who accuses him by surprise, by questions for 
which he was not prepared, and to elicit the truth. Our 
laws admit of no torture of witnesses, but they give this 
innocent privilege, than which there never was one more 
conducive to justice and right. But how shall the errors 
of a witness be -discovered ? how shall the inconsistency 
or fallacy of his story be made to appear? how shall he 
be brought to see that he himself is in the wrong, if his 
examiner is forced after piquing the spirit of contradic- 
tion in him, by putting him on cross-examination, to ex- 
plain in his hearing, the very matter wherein it becomes 
necessary to take him unawares. A cross-examination 
so restrained would be worse than none. 

The question was at length allowed, and the witness 
continued. 

A. I left them in September, 1807, because I under- 
stood that major M'Clure had ordered the rogue's 
march to be beat at captain Fisher's door, and I declared 
for that reason", that I never would throw a belt across 
my shoulder in that company. 

Q. Have they not since been reconciled? 

A. Yes. I heard that a reconciliation took place, 
and they appeared since to be on good terms. 

Q. Were you present at the beating of the rogue's 
march ? 

This question was strongly objected to, as if the wit- 
ness was present, it was an affray or riot, and his answer 
would criminate him. The counsel, on the other hand, 
said that a man might hear and see such a transaction, 
jand yet be innocent of it : and threfore the truth ought 



44 

not to be shut out Upon so slight a ground. It was, 
moreover, the witness's privilege, which he might use 
or not, as he chose. 

Q. (By a member.) Do you know of your own know- 
ledge, that major M'Ciure did order or direct the beat- 
ing of the rogue's march ? 

A. I do not, of my own knowledge. I was not an 
eye-witness of it. 

Q. Suggested by the prisoner and put by his counsel. 
Did Mr. JVTKittrick tell you that he was present at the 
beating of the rogue's march at captain Fisher's door ? 

This question was also loudly objected to. Several 
-members, and particularly captain Myers, spoke warmly 
against it, as a thing harsh and unjustifiable, to go back 
for two years and search out past facts to asperse the 
parties, and facts which had no relevancy to the cause. 

The counsel was sorry to find he had so many oppo- 
nents, and above all, upon a point not very grateful to 
his own feelings. He certainly had no pleasure in 
aspersing either major M'Ciure or captain Fisher. He 
would rather render them service if in his power, but 
if their position was now uneasy, it was not his fault. 
The whole court and every auditor has witnessed, said 
he, how much I have labored from the outset, as a friend 
to all the parties, to turn aside such invidious inquiries. 
I was not able to succeed. I have been blamed for 
too much obstinacy. The pertinacity of those moving 
in the prosecution, not mine nor my client's, has brought 
it to this shameful point. But whatever my feelings may 
be, I cannot shrink from my duty, nor refuse myseif to 
the just rights of Mr. Dillon. It is a fair principle to 
weigh the accuser against the accused ; and to shew that 
if ever there has been ungentlemanly conduct in this 
corps, it was rather of the prosecutor or the arresting 
officer, than of the prisoner, whose conduct, when on 
military duty, and with no other we can have any con- 
cern here, has been proved by the prosecutor's own 
witnesses, to have been always officer-like, gentlemanly 
and correct. I am sorry to be driven to extremity, but 
I think if a blush can ever rise upon the cheek of man, 



45 

it is when such a charge is preferred, and such evidence 
brought to support it. 

The question was then further objected to, upon the 
ground that it tended to criminate Mr. M'Kittrick. 

The counsel : If this question was asked of Mr. 
M'Kittrick, and he claimed his privilege of silence, it 
might be then an objection ; but upon a principle which 
ought to be better understood than it seems to be ; be- 
cause the law of this country, tender of the consciences 
of witnesses, will not put them into a situation, when 
they must either expose themselves to punishment, or 
prove false to the sacred obligation of an oath. That is 
a principle which I shall always reverence. It however 
must not be carried to an extravagant length. There is 
a modern case in the ^English Terms Reports, where a 
man who offered himself as bail, and was about to jus- 
tify, was asked whether he had not stood in the 
pillory. The counsel, though it was objected to, was 
allowed to ask him the question, he admitted die fact, 
and he was rejected. 

Here it was answered, that that was a foreign autho- 
rity, and not binding here. 

The counsel : As a foreign authority it is not binding 
here : but as a sound expositon of a principle of law, it 
is binding every where. It is, moreover, now adopted 
and set forth as a leading case, in every new treatise or 
abridgement on the laws of evidence, and cited in our 
supreme court, and admitted by every one of our judges. 
It is fully and ably commented on by a most judicious 
writer, with whom I have often talked it over, and who 
did not give it as his opinion to the world, till he had 
meditated near twenty years upon it.f 

The principle of that case was this : that the man 
having stood in the pillory, his crime was expiated, and 
no further punishment to be apprehended. For it 
would be conferring on a malefactor a horrible diploma, 
if his character should never be inquired into, either 
from his own admissions, or from the proof of his mis- 

1* Rex vs. Edwards, 4 T. Rep. 440. 

j Peaked Compendium of the Laws of Evidence, 129. 



46 

deeds by his confessions to others. How doubly 
absurd does this appear, when the objection is, that one 
witness shall not be examined touching the confession 
of another, for fear of criminating that other. How 
wide is that of the true principle, which is only that a 
man shall not be forced to criminate himself. How far 
would it go to suppress truth, and sacrifice the inno- 
cently accused, least the truly guilty should be exposed. 
But how infinitely more extravagant it is, when the 
witness in question has no inducement to conceal the 
fact; but is like Mr. M*Kittrick, an honest and good 
man ; who has no objection, I dare say, from my 
knowledge of him, to answer the question himself, if 
he be not desired not to answer it. 

And is it any snare to the conscience of a witness, 
to be asked what another told him ? How shall a fact 
be proved, if nobody that saw it shall be allowed to tell 
it, nor if one has told it to another, that other to speak 
of it? 

Besides, I do not know what crime there is in a mil- 
itary serenade. Is it a crime if one officer comes to 
another's door in the still hours of the night, to chase 
away slumber from the pillow of his drowsy friend, 
and wake him to more agreeable sensations by so de- 
lightful a re veil ly as the rogue's march ? Military mu- 
sic is but wind music. It is but a concussion of the 
air ; and I know not that wounding the air or beating a 
drum is any offence against the peace of the statute. 

The charge is, for un gentlemanly and unoflicerlike 
conduct. These offences being no where technically 
defined, must rest much in the opinion of the judges. 
But the best moral standard that can be brought to try 
them by, is the measure of what the prosecutors them* 
selves have thought proper to do or suffer. Accusers 
should be free from the offence of which they accuse 
others. In the law phrase parties should come with 
clean hands. Justice is delicate, and will not otherwise 
shake hands with them. And if witnesses have done 
worse than the defendant is charged to hav^ done, fh4fc 



47 

gp.es to their credit, and justice requires that it should 
be revealed. 

The court was cleared, and after some deliberation 
the question was decided to be improper. 

Upon this determination being announced to the 
counsel, he regretted that he must of necessity depart 
from the line he wished to adopt, and maintain his 
client's rights here and henceforth with ail the firmness 
he couid call to his assistance : that the cause assumed 
a more lowering aspect. He begged therefore that this 
question, with the overruling it, might be noted on the 
minutes, for unless what made against the prosecutor 
was considered, as well as what was ibr him, his trial 
could not be called impartial. 

Eighth witness for the prosecutor, Mr. JVUliGm 
Eagleson. 

Belonged to the greens from their first commence- 
ment. To the general question touching the prisoner'^ 
enticing members to join him, witness answered he 
has done so to myself: he asked me at different times 
to join his battalion, and said that I should have the 
same rank (orderly sergea.it.) I cannot recollect the 
time. It was at different times, near four weeks ago, 
probably thereabouts : the last time we conversed to- 
gether was at William Gay nor 's. It was always in this 
city. 

Q. What company do you belong to ? 

A. I belong to the battalion. 

Q. What company ? 

A. To the second company. 

Q. Who is the captain of the company vou belong 
to? 

A. James Farrell acted the last parade day. 

Q. But in fact who is the captain ? 

A. I tell you James Farrell acted as captain the las* 
parade day. 

Q. Who is the actual captain of the company ?., 

Witness repeated the same answer, 

Q. Were there two captains ? 



48 

This question was opposed by a member, as tadnting 
the witness and trifling with the court. 

The counsel : It seems to me at times as if every thing 
and every body was to be more respected than that 
which was above all — the truth. There never was a 
simpler question put to a witness, than who was captain 
of the company. There never was an answer more 
equivocal to so plain a question. If he who opposes 
this question thinks otherwise, let him tell me if he 
can, who is captain of the company ? James Farrell 
acted the last parade day, is the witness's answer ; and 
there for what good reason I know not, he seems to 
entrench himself. I say that is trifling with the court — 
and I say it is worse than trifling with the court, to sup- 
port a witness in any suppression of the whole truth , 
which he is sworn to tell. 

(This question was also decided to be improper, and 
accordingly overruled.) 

The counsel : I am more and more convinced that my 
office is useless. I see now (looking earnestly at the 
witness) how it is ! 

Witness : Why might there not be two captains ? 
Might not one of them be shot ? 

To which the counsel replied, smiling, it is true if 
one was shot, and another appointed, there would be 
two : there would be the living captain and the dead 
captain. But there are some bad calculators who would 
say, that if one was shot, and no other appointed, there 
would be no captain, much less two. 

Here there was a general burst of loud laughter. 
The president commanded order. The counsel moved 
that the persons who presumed to laugh might be com- 
mitted for a contempt of court. 

Q. (By the counsel.) After ail, who was the captain ? 

A. At the last day James Farrell acted as captain, 
and I considered him as captain. 

Q. Did vou ever consider Mr. IVrKittrick as captain ? 

A. I did. 

Q. How long has Mr. M'Kittrick ceased to be cap- 
tain ? 



49 

A, I cannot justly answer ; three or four weeks, pro- 
bably more, and probably less. 

Q. Were you present when Mr. M'Kitrick resigned.** 

A. No. 

Q. Were you present when he took leave of the com- 
pany ? 

A. I was at the Union Hotel before the last parade, 
the last day he was out along with the company, taking 
care of them, but not in uniform, only walking along and 
looking at them — walking with them as a spectator, the 
same as any individual here would do. 

Q. Do you know any thing of the disbanding of cap- 
tain Fisher's company ? 

A. I do not know whether it was disbanded or not. 

Ninth witness for the prosecutor, Frederick Bonner. 

Q. Do you know of Mr. Dillon's election as captain 
of a company ? 

A. He was not elected, he was appointed. 

Q. How was he appointed ? 

A. Dr. M'Neven was in the chair, and appointed Mr. 
Dillon as captain in the second battalion of republican 
greens. 

Q. Were you ever asked to join ? 

A. Never by any man. 

Q. When was he appointed ? 

A. Off and on about five weeks. 

The president had more than once intimated to the 
judge advocate, the inutility of calling too great a num. 
ber of witnesses to one particular fact, and cited M* Ar- 
thur, vol. 2. p. 124, that it could only tend to protract 
the trial, and at length ultimately to elude justice. 

The evidence for the prosecutor closed. 

The prisoner's counsel said he was ready and very 
willing to go on and finish the trial without stopping, 
provided the letter which he held, addressed by governor 
Tomkins, the commander in chief, was admitted to be his 
excellency's hand- writing, and to be read in evidence. 

The president and other members, and also the judge 
advocate, desired to see the letter, which was readily 

G 



50 

acquiesced in, on behalf of the prisoner. The judge- 
advocate, after having read it, said he should prefer to 
have it proved by the commander in chief. It might 
or might not be genuine; or the commander in chief 
might perhaps explain it, and throw some further iight 
upon the subject. 

The court thereupon postponed the examination of 
tl,ie prisoner's evidence, and adjourned till Friday, Sep- 
tember 1, 1 o'clock, P. M. 

The prisoner's counsel accordingly waited on his ex- 
cellency, and requested his attendance as a witness. 

September 1, 1 o'clock, p. m. 
The prisoner's counsel, observed that it was laid down 
by the best writers on courts martial, as the most con- 
venient, proceeding to read the charges to the witness ; 
and as they ate supposed to contain the most precise 
statement of facts, to call upon him to state, in the first 
instance, what he knows touching those facts. 

The charges were accordingly read to the commander 
in chief by the judge advocate, but being read at lull 
length, as at first preferred, and not as afterwards abridg- 
ed, the counsel said he was at a loss to know how to in- 
terpret that inconsistency. If he had an objection at first 
to so serious an innovation, as that of trying a man upon 
altered charges, he had a still stronger one to altering, 
them a second time, after the prisoner had gone through 
trial upon them in their abridged form. This would be 
doubling the error, and increasing the mischief. He 
hoped it was not now intended to change ground a se- 
cond time. It would be like falsifying a record. Kither 
the parts expunged were in or they were out, it must be 
a matter of certainty. 

His excellency being asked if that letter was in his 
hand- writing, said it was, and related the substance of 
it, and the circumstances which gave rise to it thus, 
There had been a petition presented to me for leave 
to organize a company, and praying permission to have 
the same uniform as the rifle battalion. 

There was another petition from another corps desir- 
inga different uniform. I intimated in answer to a note; 



51 

of Dr. M'Neven, that it would be more proper to have 
the two companies which were to be in the same batta- 
lion, in the same uniform* He called upon me, and 
consented to take the uniform I prescribed, and I there- 
upon gave orders for the brevets to be issued, and gave 
permission to organize the company with that uniform. 
Dr. M^Neven this day informed me they had not yet re- 
ceived them, and that ihe adjutant general wished for a 
little delay till I came to town. I think it proper to say, 
that the assurances I gave by that letter to Dr. M'Neven, 
he having consented to the terms, together with my 
having directed the issuing the brevets, with all the cir- 
cumstances, entitled them to consider themselves autho- 
rized to raise the company. In their place 1 should have 
considered myself authorized to take all preparatory 
steps for its organization. The brevets have been de- 
layed, but for that the adjutant general has given me 
satisfactory reasons. 

His excellency afterwards -explained that these reasons 
were the want of sufficient minuteness in the specifica- 
tion of the uniform, touching hats and feathers, and 
other particulars necessary to be set out in the orders ; 
and he added that he had, in consenting to the organiza- 
tion of this new company, expressed this sentiment, that 
he disapproved of raising any new uniform companies, 
unless they could be filled without imparing the num- 
bers, or affecting the prosperity of those already formed. 

This was the substance of his excellency's testimony, 
after several slight corrections of what the judge advo- 
cate had written down, a few of which his excellency 
wrote with his own hand. 

The prisoner's counsel, before he opened the defence 
of the prisoner, wished to know if the closing argu- 
ment would be allowed to him, or a rejoinder in 
evidence, which it appeared from what was stated by 
several authors on courts martial, was often permitted 
to the prisoner. In that case he would perhaps call no 
witnesses and postpone any comments upon the prose- 
cutor's testimony, till he had heard upon what ground 
he meant to rely. Much time might thus be saved. 



52 

This demand was opposed as unusual and irregular. 
A member (captain Myers) referred to Adige on courts 
teartial, p. 202, which he put into the counsel's hand. 

The counsel : I thank the member for his politeness, 
but I think the authority is in my favour, for though it 
says the prosecutor has a right to reply, &c. yet a little 
lower on the same page are these words : •* And as 
courts-martial are inclined to grant very reasonable in- 
dulgence to a prisoner, he is generally permitted, upon 
application, to give in his answer to the prosecutor's 
reply, which is termed a rejoinder." I find ihen I am 
right. It is true this is a matter of favour. But if we 
consider in this case, that the court have new modelled 
the accusation, by altering the charges, so that I am 
really at a loss till I hear some argument from the judge 
advocate, to know to what to apply myself, or how to 
direct the defence. I should request, for the prisoner, 
the indulgence of a rejoinder, and should make merely 
an opening in the mean time of my defence, or if more 
agreeable, call the witnesses directly. Perhaps I should 
not even call one. 

The court decided that it would follow the ordinary 
practice in criminal courts, where the prosecutor has 
always the last word. 

The counsel was at first disposed to call no other 
wtnesses, and to proceed instantly to sum up ; but the 
prisoner observed that all the persons named as having 
been paraded being then present, he wished them to 
be examined, in order to shew that they had legal ex- 
emptions or discharges from the battalion, and were 
free to join what corps they thought proper. 

First witness for the prisoner, Michael Lcmdy. 

Q. Did Mr. Dillon ever invite you into the new 
corps commanded by Dr. M'Neven ? 

A. He did not. I was invited to sign a paper by 
Mr. Gay nor. 

Q. Did he tell you you could not be a member with- 
out a discharge from the old ? 

A. He did. 

Q. Have you quit the old greens ? 



53 

A; Yes, and I enrolled myself in the militia, and 
demanded my discharge from captain Morrison, which 
was refused without orders from the major. 

Q. Did you turn out with the old greens the last 
day of their legal parade ? 

A. I did. 

Q. How were you received that day' as a soldier? 

A. I certainly was not. I was shoved and driven 
out of the ranks, and put to guard off the croud from 
the band. 

On cross-examination it appeared that witness had 
gone with belts, &c. but out of uniform, because he w 7 as 
unprovided Avith a uniform pantaloons he was ashamed 
to put on the uniform coat, therefore appeared with 
gun and belts merely, but afterwards went and returned 
in full uniform, but was not admitted. 

Q. Do you know of the rogue's march being played 
before captain Fisher's door ? 

This question was objected to upon the grounds 
formerly stated, and the counsel said one witness to 
one uncontradicted fact being enough, he would with- 
draw it. 

Q. Did you sign the paper Mr. Gay nor shewed you, 
and what was its purport ? 

A. It was to raise a new corps under the command 
of Dr. M'Neven. 

Q. Do you know of any agreement amongst the 
members of the new corps to turn out in the old without 
their uniform ? 

A. I do not. 

Second witness for the prisoner, William Gaynor. 

This witness proved his certificate of discharge from 
the fourth company of the battalion in these wores : 

" To all whom it may concern ; be it known, that 
William Gaynor is no longer a member of the fourth 
company of the republican green riflemen, as I hereby 
discharge him at his own request. 

ROBERT BLEAKLY, 
Lt. Comdt. 4th company rifle corps." 
New- York, July 10, 1809. 



54 

Q. Did you receive this from lieutenant Bleakly? 
A. I received it by the orderly sergeant on the day 
of its date. 

Third witness for the prisoner, Thomas Scott. 

Proved a certificate of discharge in all respects like 
that of the former witness. 

Q. Why did you leave the company ? 

A. I can give no reason but that of disapproving of 
the treatment given to ensign Dillon. I did not ask for 
my discharge, it was sent to me without my asking 
for it. 

Q. On cross-examination. Did you see any, and 
how many parades at the ball alley in the green uniform, 
and did not Mr. Dillon command those in uniform ? 

A. Mr. Dillon was not in that uniform, for he had 
green pantaloons. There might be a dozen in green 
coats, but they came, or staid as they thought proper; 
there was neither fine nor compulsion. 

Q. By the prosecutor. Do you know of any offer 
made, or any inducement held out to any of the mem*, 
bers of the old battalion to leave it and join the new? 

A. I do not. 

Q. By a member. What was the treatment of en- 
sign Dillon, to which you say you objected ? 

A. He was discharged, and I never could bear any 
good reason for it. 

Q. Do you know that he was discharged ? 

A. I understood the wnole company to be discharged} 
all broken up by captain Fisher. 

Fourth witness for the prisoner, Hugh M" Garraghan. 

Q. How old are you ? 

This question was objected to by some members, 
as being of too trifling a nature. 

The counsel : Again I find I must be taught how to 
defend my client. I must only say that this is the ques- 
tion, and the principal question I have to put to t\\h 
witness. 

A. 1 am above 45 yeajrs of age. 



55 

It appearing that the witness was above the age of 
military duty", the meaning of the question became evi- 
dent, and no further difficulty was made. 

Q. Were you at the disbanding of captain Fisher's 
company ? 
A. I was. 

Q. Were you orderly serjeant? 
A. Never. I was a serjeant. 

Q. In what manner did captain Fisher disband the 
company ? 

A. In the entry of the Union Hotel, he told John 
Kehoe and two or three more, that they might go where 
they liked ; that he was no longer their captain. 

Q. Did you hear for what reason it was desired to 
get rid of ensign Dillon ? 

A. No : unless for not voting. 

Q. By the prisoner's counsel. Do you know that 
m#jor M'Clure sanctioned captain Fisher's new roll ? 

A. Major M'Clure told me that he had himself sent 
a new roll to captain Fisher, with a list of 17 men, and 
wondered what captain Fisher could mean by asking 
about it. 

Q. On behalf of the prosecution : 
Q. By the prisoner's counsel. Do you know of any 
men of the republican greens enrolled in the new com- 
pany, with a discharge from the old ? 
A. I do not. 

Q. Do you know of any inducement held out to any 
of the battalion to join the new company ? 
A. I do not. 

Q. By a member (captain Christian.) When you 
spoke of ensign Dillon's voting as the motive for getting 
rid of him, what voting did you mean, or for whom ? 

This was objected to by captain Davis, as tending to 
introduce politics into the trial, whereas there should 
neither be politics nor religion implicated with it. 

The member who put the question said he thought 
politics or religion should never influence any judgment ; 
but he wished all facts to come fairly out. it might be 
^vOtingat a porter-house or a club, or it might be voting 



56 

constitutionally for some public functionary, and the 
witness could best explain himself. If it was legal vot- 
ing, and for a constitutional purpose, it turned against 
the prosecutor, if the contrary, against the prisoner. 

The prisoner here rose and offered to give evidence 
that the motive for getting rid of him, was his not hav- 
ing voted at the election for the assembly ticket, as well 
as for the senatorial. 

The counsel, who conceived his client's defence al- 
ready full enough, did not press this point. 

The court was cleared and the question overruled. 
The prisoner's counsel was ready to sum up instantly. 
Some of the members were willing to hear him, and 
that the trial should conclude this day, but others had 
to return to the country, and thought the day too far 
advanced, and the court was adjourned to Monday the 
4th instant, at 2 o'clock. 

September 4. 

A certificate was read, signed by Dr. Morton stating the se- 
vere indisposition of captain S wanton, and his utter inability to 
leave his house. 

The prisoner's counsel, before he summed up, begged of the 
judge advocate to intimate to him, upon what law he intended to 
rely, as he had read carefully every section of the militia law, and 
could find nothing iruany section of it, to warrant the proceeding; 
and also if he had any authorities of law or precedent, to give bim 
an opportunity which he could not otherwise have answered 10 
them. 

The judge advocate said that he should abandon the charge of 
mutiny, and insist upon the other charges of unofficer-like and 
ungentlemanly conduct. 

The counsel: Is this charge to be supported by the statute law? 
Immemorial or prescriptive it cannot be. If by statute here- 
quested to know where the section was, that gave authority to try 
a person in the character of the prisoner, for such an offence ? 

The judge advocate said he should not rely upon any statute, 
but upon the general principles of the common law, and the rea- 
son and necessity of the case. 

The counsel: Then I must understand that this is an indict- 
ment for not being a gentleman at common law, to the evil ex- 
ample of all others, and against the peace of the people of the 
State of New-York and their dignity. 

He then addressed the court in a speech of from two to three 
hours in length, and was followed by the judge advocate in a 
speech upwards of an hour. 



57 

He began by reading from Macomb, page 16, as follows : 

" It frequently happens, when charges are exhibited by a private 
prosecutor involving the consideration of various articles of alleg- 
ed misconduct or malversation, that the prosecutor, either from 
over anxiety or error in judgment, specifies certain matters as ar- 
ticles of charge, which a court may judge to be of a nature entirely 
blameless ; and that although proved, or acknowledged by the pri- 
soner, they infer no criminality. In such a case it is the duty of 
the court to dismiss the charge altogether, and throw it out of their 
consideration as irrelevant. In like manner, where a charge 
appears, from facts emerging in the course of the trial, not to 
attach upon the party accused, it is the duty of the court to waive 
all examination into the subject, as being foreign to the person of 
the prisoner, and to be declared so by their sentence . 

It was upon this ground he had so repeatedly importuned the 
court to cut short the proceedings, till he found that more time 
was lost by fruitless applications, than he had hoped to gain. The 
authority cited would however -serve as his excuse ; and he would 
now lay down the other authorities with which he was all along 
prepared to support his objections, had he been heard. 

To shew that the court had done wrong in altering the charges, 
Macomb, 68 — 9. 

" A true copy of the charges on which the prisoner is to be 
tried must be furnished to him by the judge advocate in such time 
before the meeting of the court, that he may have full opportunity 
of preparing himself for his defence, that is, collecting such evi- 
dence, either oral or written, as may be necessary for his exculpa- 
tion, or in rebutting the proofs of the charge, and for the advising 
with his counsel, on all points touching the conduct of the trial, 
objections to the members, competency of the witnesses, &c. 

•' After the charges have been thus far furnished to the prison- 
er, it is not competent for the judge advocate or the prosecutor, 
to make any alteration in them either in substance or in form, 
when they come before the court. If a material alteration occur-* 
to be made before trial, the consent of the commander in chief, or 
of the person on whose order the trial is to proceed, must be ob- 
tained for that alteration, of which likewise the prisoner is entitled 
to have the most timely notice that can be given to him." 

As to altering the charges : without entering into the question 
whether after arraignment the court can expunge any charge, cr 
is not on the contrary bound to give the prisoner an honourable 
acquittal on all that are illegal, or it legal that are not supported 
by evidence? It is clear that no court has he power of altering a 
charge, either by adding to or abridging it. The first charge 
here was mutiny : the overt-act specified in support of it, was 
simply a declaration in the presence of lieutenant Tate. If this 
charge, taken altogether, be frivolous, or malicious, or absurd, 
the prisoner is entitled to an honourable acquittal on those 

H 



58 

groutfas. And it was not competent to any court to expunge 
three fourths of such a charge, in order to make the remaining 
fourth wear the appearance of common sense, or to- do away the 
expression and character of malice or frivolity. 

It is therefore laid down strictly, that a prisoner shall have a 
true copy of the charges against him, and that there shall be no 
alteration, not even in form, much less in substance. 

When the illustiiiuus Sidney was on his trial at the bar of the 
king's bench, where he and the law underwent a common martyr- 
dom, he made use of this emphatica'l reouke to the chief justice, 
who seemed more willing to be his accuser than his judge. 

" My lord, if you take the scripture by pieces, you will make 
all the penmen of the scripture blasphemous. You may accuse 
David of saying there is no God : accuse the Evangelist of saying 
Christ was a blasphemer and seducer j and the apostles that they 
were drunk. And this was true, for when David exclaims, 
the fool hath said in his own heart, there is no God : " Ex- 
punge but one leading section of that sentence, and you 
may formally, but falsely, convict the psalmist himself of blas- 
phemy. This instance is sufficient for me to- shew, that the sense- 
and spirit of any declaration may be as entirely changed by ex- 
punging as by adding, and therefore the law allows of neither. 
And therefore Mr. Dillon- is liable to no legal conviction or sen- 
tence upon such altered charges, nor bound even to answer to 
them. Sidney's judges, it is true, had power to destroy him, 
but their names became infamous, whilst his attainder was* 
afterwards reversed, and his memory has became immortal. 

The counsel next, to shew the exactness with which every 
charge should be specified, upon- principles similar to those which 
govern indictments, cited Adye, p* 123-4, an£ also M' Arthur, 
vol; 2, p. 5 to 10. 

The very words of the act creating the offence should be, 
followed, in order to shew clearly the transgression of it. That 
the prosecutor is bound by the charges on which the prisoner has 
been arrested, and the prisoner not held to answer any thing else, 
to this he cited the militia law, s. 73> and Macomb, p. 61, Sec. Sec. 
And that the prisoner may take advantage of any such variance, 
AdyC, p. 123. That the true name of the ship or regiment 
must be clearly and distinctly set out, M* Arthur, vol 2, p. 8, be- 
fore cited. 

That the crimes cognizable by courts martial, are those only 
which are made so by the statute, and they are so clearly defined 
as not to be mistaken, Adyc, p-. 60. Beyond them the court 
cannot go, tor its jurisdiction is particular, and, when it cannot 
shew itself entitled by statute, it cannot shew cither custom of 
prescription. 

In England, a warrant, even under the king's sign manual, 
must recite the mutiny act, to give the court jurisdiction. So 
much for the cognizance of the caUse. 



59 

As tolhe omission to state at what place the offence' was com- 
mitted, it was an incurable error, not only because of the want of 
a venue, but ^because it deprived the prisoner of the meai:s of 
meeting the charge. And though a slight mistake in time or 
place is not always fatal to the indictment, provided the place 
named be within the jurisdiction, and the day laid previous to the 
fact : yet wherever the day or place makes part of the description 
of the offence, it becomes material to set it forth strictly, but 
there was no instance of an indictment being supported, in which 
there was neither time nor place stated. 

Touching the objections to the jurisdiction over the person of 
the prisoner, and that no person not made amenable expressly 
"by the statute, can be tried by courts martial, he cited the militia 
law of this state, s. 68, which is exactly in conformity with the 
English law on that head. The militia or volunteers here, as in 
England, are never subject to the articles of war, but when in 
full pay, and when they are in the service of the United States, 
or ordered out on the exigencies pointed out by the statute. 
Macomb, p. 28-9. 

The militia in England are not on the same principle amen- 
able to the law martial or to courts martial, but when ordered out 
to be trained, or in case of war and actual service, and when on 
Jull pay. 

The leading criterion seems to be full pay. It is only when 
they receive pay that they are amenable. 

Drummers and non-commissioned officers in the militia are 
amenable upon that principle, being always in pay. The officers 
and privates are not amenable when they are not on pay. (ib.) 

In naval courts martial the jurisdiction extends no further than 
to offences committed on the sea, creeks, havens, or great rivers, 
below the bridges, within the jurisdiction of the admiralty, and 
which shall be committed by persons then in actual service and 
full pay, in the fleets and ships of war of his majesty. And 
when it was first attempted to extend the jurisdiction of courts 
martial over the seducers or corrupters of officers and mariners, 
being persons other than those in service and full pay, it was 
violently opposed in parliament, as a dangerous extension of 
jurisdiction, and an encroachment on the constitution, 1 M 4 Ar- 
thur, 178. 

Shall it then be said, that in this country, and -under the safer 
guard of a constitution averse to every arbitrary principle, where 
the truest principles of freedom are understood and cherished, 
and in a mdment of profound tranquillity, there shall be less" re- 
gard to the rights of a citizen, not on duty nor on pay, and free 
from every military obligation, than there is for the mercenary 
soldier of a king. 

Even in England, the encroachment of military jurisdiction is 
so jealously watched, that the very persons who serve on board oi 



60 

military transports, cannot be tried by courts martial, but must 
be delivered to the common law courts. (lM' Arthur, 380. lb. 346.) 
And half-pay officers are exempt from courts martial, and the 
attempt to render them obnoxious to them, in 1740, met so much 
opposition in and out of parliament, that the minister, fearing the 
consequences, was obliged to abandon it, and it was rejected. (1 
M'Arthur, 187-8-9.) 

Upon the same strict principle, brevet officers, although in ac- 
tual command, and of course on full pay, were not held subject tq 
courts martial It was necessary to have the sanction of parliament 
for the alteration, and it was also much contested, and it was done 
by a kind of side wind by introducing- into the annual mutiny bill 
the word '* mustered* 1 instead of the word " commissioned: 91 for as 
long as the statute had only the word commissioned, none dare 
push the military jurisdiction, however apparently justified by the 
reason of the thing, beyond the letter of the law, so strictly are all 
particular jurisdictions confined. (I M'Arthur, 196-7.) 

Ungentlemanly and unofficer-like conduct, is an offence merely 
by the articles of war, and it is not pretended that the militia, or 
uniform corps, are subject to the articles of war in time of peace, 
and when not in service and on full pay. And \t is a charge of sq 
vague a nature, that the prosecutor is held to the greatest of all 
strictness. (Macomb, 63^-4-5.) 

The word *gentleman may be very good \t\ tea table conversar 
tion, but what is it in law, no man can say, nor no law has said. 

Upon the whole, when we reflect that the army of England is a 
mercenary standing army, recruited often from gaols and con-: 
demned cells, and that those who enlist in it submit themselves by 
voluntary contract and for wages, to the rigors of the mutiny 
bill: and that courts martial are the occasion of that mutiny bill, 
and that the articles of war are so also, and framed at the will of one 
individual sovereign, the king : yet that there is still so much re- 
straint in that almost despotic monarchy, on their encroachments ; 
when we reflect on this, it is wonderful how it could enter into 
the head of any American citizen, to fall into such a mistake, as, 
to tnink of subjecting his fellow citizen under the circumstances 
of this case to their operation : one who was neither on pay, 
in service, nor on duty ; and in a time of perfect tranquillity! Are 
the rights then of American citizens, less worth guarding than, 
those of the mercenary soldiers and half enslaved subjects of an 
European monarch I 

* As for gentlemen, says sirThomas Smith, in his Commonwealth 
of England, (b. 1. c. 3.) they may be made good cheap in this king- 
dom : for whoever studieth the laws of the realm, who studieth in 
the universities, who professeth the liberal sciences, and to be short 
who can live idly and without manual labour, and will bear the part, 
charge and countenance of a gentleman, shall be called master, and 
•shal| be taken for a gentleman. 



61 

I have said, added the counsel, that all courts of partial jurisdic- 
tion exercise it at their peril : and this has been called threatening 
the court. It was not so meant : it was only warning tne court of 
what the law was, md the truth of that warning will be found in 
the following authorities. 

If regimental couns martial presume to try mutiny or deser- 
tion, though no objection be taken by the prisoner, they are pun- 
ishable. (1 M< Arthur, 144.) 

The same where even a nor—commissioned officer is ignomini- 
ously degraded by a regimental court martial. (lb. 145. Serjeant 
Ginger's case.) 

A more memorable instance of the control of the constitution 
over usurped jurisdiction, and with it over the power of ministers 
and the source of prerogative itself, is in the appendix to the J st 
■volume of M ; Arthur, No. 13, p. 341. 

The counsel read the whole. 

Case of Lieutenant Frye of the Marines, and the consequences 
resulting from illegal proceedings at a Court Martial. 

IN the year 1743, lieutenant Frye of the marines, serving on 
board the Oxford man of war, was brought to a court martial, at 
Port Royal, in Jamaica, by the captain of the ship, for having dis- 
obeyed his orders, in refusing to assist another lieutenant in carrying 
an officer prisoner on board the ship. Lieutenant Frye had persist- 
ed to have the captain give the order in writing. The evidence 
produced against him at the court martial, were the depositions of 
a parcel of illiterate people, reduced into writing several days be- 
fore he was brought to trial, which persons were entirely unknown 
to him, having never to his knowledge seen or heard their names 
before ; and upon his objecting to the evidence, he was brow-beaten, 
and overruled. On the charge being thus proved, he was sentenced 
to fifteen years imprisonment, and rendered for ever incapable of 
serving his majesty. He was brought home, and his case after be- 
ing laid before the privy council, appearing in a justifiable light, his 
late majesty was graciously pleased to remit the punishment, and to 
order him to be released. 

Some time after he brought an action in the court of commons, 
against sir Chaloner Ogle, who had sat as president at the court 
martial, and had a verdict in liis favour for 1,0007. damages, it hav- 
ing been proved that he had been kept fourteen months in close con- 
finement before he was brought to trial. The judge moreover in- 
formed him, that he was at liberty to bring his action against any 
of the members of the said court martial he could meet with. The 
subsequent steps of this case are still more remarkable. 

Upon application made by lieutenant Frye, sir John Willes, lord 
chief justice of the common pleas, issued his writ of capias against 
rear admiral Mayne, and captain Rentone, two of the members 
who had sat at the above court-martial ; on the 15th of May, 1746, 
while admiral Mayne presided, and captain Rentone sat as member 
of a court martial, at Deptford, for the trial of vice-admiral Les- 
tock, they were both arrested, at the breaking up of the court, in 
consequence of the above writ. The arresting of \he president 



62 

highly offended all the members of the court, they met twice on thp 
subject, and resented highly what they deemed an insult, and drew 
up certain resolutions, in which they expressed themselves with 
some degree of acrimony against the lord chief justice ; and the 
judge advocate was directed to deliver them to the board of admi- 
ralty, in order to their being laid before the king. In these resolu- 
tions they demanded " satisfaction for the high insult on their pre- 
sident, from all persons how high soever in office, who have set on 
foot this arrest, or in any degree advised or promoted it," and re- 
monstrating, that by the said arrest, " the order, discipline, and 
^government of his majesty's armies by sea was dissolved, and the 
statute 13 Charles II. made null and void." 

The lords of the admiralty were much displeased at the indignity 
offered the court, and accordingly laid the resolutions before his 
majesty. The duke of Newcastle, by Ms majesty's command, 
wrote to the lords commissioners of the admiralty, wherein he says, 
** His majesty expressed great displeasure at the insult offered to 
the court martial, by which the military discipline of the navy is 
so much affected ; and the king highly disapproves of the behaviour 
of lieutenant Frye on the occasion. His majesty has it under consi- 
deration what steps may be adviseable to be taken on this occasion." 

From the sequel it will appear that the lords commissioners of the 
admiralty, as well as the secretary of state, were not aware of the 
very great authority of the lord chief justice of common pleas ; who, 
as soon as he heard of the resolutions of the court martial, caused- 
each individuel member to be taken into custody, and was proceed- 
ing in legal measures to assert and maintain the authority of his 
office, when a stop was put to the process by the following submis- 
sion (signed by the president and all the members of the court*) 
being transmitted to lord chief justice Willcs. 

" As nothing is more becoming a gentleman, than to acknowledge 
himself to be in the wrong, so soon as he is sensible he is so, and to 
make satisfaction to any person he has injured ; we, therefore, 
whose names are underwritten, being thoroughly convinced that we 
were entirely mistaken in the opinion we had conceived of lord 
chief justice Willes, think ourselves obliged in honour, as well as 
justice, to make him satisfaction as far as it is in our power. And, 
as the injury we did him was of a public nature, we do, in this 
public manner, declare, that we are now satisfied the reflections 
cast upon him in our resolutions of the 16th and 21st of May last, 
were unjust, unwarrantable, and without any foundation whatso- 
ever ; and we do ask pardon of his lordship, and of the court of 
common pleas, for the indignity offered both to him and the court." 

* Signed by Perry Mayne, esq, rear admiral of the blue, presi- 
dent ; honourable John Byng, rear admiral of the blue. 
CAPTAINS. 
Honourable Ed. Legge, Jn. Orme, 

James Rentonc, Thos. Frankland, 

Charles Coleby, Honourable Jn. Hamilton, 

Joseph Hamcr, Sir Chas. Molloy, 

Smith Calis, Robert Erskinc, 

John Pitman, Chas. Catford, 

Thos. Hanwa}*, Edw. Spragge. 



63 

this paper was dated the 10th of November, 1746, was received 
fit the court of common pleas on the 14th, and ordered to be regis- 
tered in the remembrance office — a memorial, as the lord chief 
justice then observed, " to the present and future ages* that who- 
ever set themselves up in opposition to the laws, or think themselves 
above the law, will in the end Jind themselves mistaken*, The 
letter from the court martial, together with judge Willis's accepta- 
tion, were inserted in the Gazette of the 13th November, 1746. 

x Here then were two admirals and fourteen captains, backed by 
a powerful ministry* and by an almost absolute monarch, foreed 
to bow in submission to the law of the land, and to ask pardon of 
the depositoryand representative of the law, for having presumed, 
lo exceed their jurisdiction, and do what they had no right to do 
With respect to the impartiality required of the judge advocate, 
he cited Adyc, p. 1 15, and the opinion of Lord Bathurst, in an- 
swer to queries put to him. ( I M* Arthur, 348.) 

" The duty of a judgfe advocate can only be collected from the 
statutes which relate to naval courts martial, and the constant 
practice siBce the first of these ; which is supposed to be the 13th 
of Charles II. It is undoubtedly his duty that the proof, both on 
the part of the crown and the prisoner, should be properly laid 
before the court. ; and where the point is doubtful, he should incline 
en the part of the prisoner-" 

The counsel next proceeded to remark upon the evidence. 
The first witness, Mr. Patterson, certainly proved nothing ot 
what he was called to prove ; and yet it was not his fault, for he 
Seemed willing enough. The charge stated a number of men 
with republican green uniform, and he said there were about 
sixteen or eighteen who belonged to regular companies of the 
battalion. Thus far the evidence and the charge agreed. And 
still more in this, that they both remained so uncertain as to put it 
entirely out of the prisoner's power to make any defence, unless 
by summoning the whole battalion, and asking every individual 
if he was of the party paraded or seduced, and then they might 
have excused themselves from answering, upon the same princi- 
ple as those did who were at the beating of the rogue's march, 
and say they were not bound to criminate themselves. However, 
being pressed to name any of the sixteen or eighteen, he did 
name three, Michael Landy, Thomas Scott, and Hugh M'Gar- 
raghan. Here then, for the first time, after a fortnight's torment 
and so many adjournments, have we been able to learn the 
name of a single person whom we had either seduced or paraded. 
And the court has seen how very readily we overset this accusa- 
tion, whenever the opportunity was given us, by shewing that 
the men did not, as was stated, belong to any regular companies, 
but were all exempt or discharged. And can it be said we June 
suffered no hardships, or are entitled to no retribution for so much 
vexation on so unfounded a prosecution ? 

This witness could not say who ordered or commanded ibis 
parade ; but we have shewn that so far from persuading; raen to 



64 

d&sert the service, we were, in pursuance of legal authority 
bringing' back into the service of the country, men who had been 
discharged from their companies without asking for their dis- 
charge ; or shoved out of the ranks; or upwards of forty five 
years old, who were exempt. So that if there be two things in 
nature diametrically opposite, it is these two — that is to say, 
the charges brought against ensign Dillon, and this evidence 
brought in support of it. 

He ;>.ext talks of captain Fisher's first company and captain 
Fisher's old company, and in truth it would require the tongue of 
a little Miss to run the changes upon captain Fisher's companies. 
The tongue of a man of my years is not glib enough to do it. 
I will however try. — There is Fisher's first first company of the 
first battalion of linemen of the city of New-York, attached to 
the first brigade : Fisher's first first company of the republican 
greens : Fisher's second first company of the rifleman of the 
first battalion and first brigade of riflemen : Fisher's second first 
company of republican greens : and Fisher's old first company 
of riflemen of the first battalion. I find it impossiu^, it is be- 
yond my powers to count the companies of captain Fisher, and 
yet should the truth come to light I fear it would be found that h* 
is not legally possessed of one. 

He could not tell who enrolled the men, and rather guessed they 
were there by Mr. Dillon's orders, lie guessed rather wrong in 
this, for they were parading lawfully in their new corps, under the 
orders of their commanding officer Dr. M'Neven. At all events, 
the witness had the candor to allow, and I give him credit for it, 
seeing how warm he was, that this parade interfered with no legal 
duty of any men whatsoever. If so, was not there an end of this 
charge ? Suppose the utmost concession made of all the rest of 
the facts ; suppose they were of legally constituted corps, was 
there any harm in their parading and exercising, and acquiring 
more military knowledge ? Was it not rather meritorious, as 
long as it contravened no duty, either military or civil ? If it was 
no crime in them to parade, it was none surely in Mr. Dillon to 
parade them. Yet for this he has been arrested and tried as a 
mutineer and an ungentlemanly man. 

This witness proves a still stronger and more extraordinary 
fact in favor of the prisoner whom he was called to accuse, which 
is that so far from being captain Fisher's ensign, which is the cha- 
racter in which he is accused, and in which only he can be here 
amenable, captain Fisher had got rid of him by breaking up his 
company, and now had another ensign in his place, whose election 
lie had ratified, and whom he now commanded ; and with respect to 
his own disbandment, it was the solemn act cf his captain ; and had 
he presumed to doubt his authority, he might perhaps have charg- 
ed him with muiny for not believing him authorized, as he is 
now culled a mutineer for believing him so. Combine this addi- 



65 

tion of first and second ensign in Fisher's first and second, and 
old and new companies, of the first battalion of the first brigade, 
and whoever has leisure and inclination to amuse himself, may 
have more charges than he could ling on all the bells of the ca- 
thedral of Canterbury. 

So active Were the captain and lieutenant to get rid of ensign 
Dillon, that they made but or.e business of their disbandraent and 
re-election ; but after the captain and lieutenant had thus got rid 
of their ensign, they had themselves re-elected, leaving a vacancy 
for the new ensign, Haynes. 

The next witness was Mr. James M'Keon. Did he prove the 
charges ? No. What then did he do ? He proved the contrary. 
He never had seen ensign Dillon parading any men, and he proved 
that captain Fisher himself told him he had discharged the com- 
pany, and was no longer a captain, and had no company. He 
had then no company, Mr. Dillon had ceased to be his ensign. He 
has got or given himself a company since that time : he has also 
elected an ensign for it, and has him at his command ; so that un- 
less he will have two companies and two ensigns, he cannot have 
JMr. Dillon. I see clear enough how to defend Mr. Dillon, but if 
Mr. Fisher were to be tried in his place, I should think he would 
have need of abler counsel. 

Next was Mr. M'Curdy. He saw 1 5 or 20 in republican green 
uniform, but can only name two — M'Garraghan andLandy. Does 
he prove the crime of enticing? No. What does he prove? 
The contrary': that is to say in express terms, that he never knew 
ts>f the seduction or the withdrawing of any men from their duty. 
Should not the prosecution have been dropped when the prosecu* 
tor's witness proved so fully the prisoner's innocence It was not 
Mr. Dillon who paraded the men, according to him, but Dr. 
M'Neven who paraded Mr. Dillon and his other officers and sol- 
diers all together. Did he prove that it was against the consent 
of officers? No! But he proved that as far as he knew, there 
were no orders to the contrary : and also that it was not on the 
night of any legal parade of any companies. After the evidence 
of these three witnesses, why was the charge persisted in? 

The next is Mr. M'Kittrick, who says the prisoner spoke to 
him by way of a joke. 

I love a joke as well as another, but this is a black joke, and 
whether Mr, Dillon can relish that I know not. Jokes become 
serious when men are tried for mutiny : paying dear it is For 
a joke to be prisoner for a month, and be obliged to attend from 
day to day, and to provide witnesses and pay counsel, and counsel 
who stands much upon being paid, and does not come for nothing 
to meddle officiously in other men's affairs. All these things 
are but bad returns for a civil joke. But Mr. M'Kittrick, when 
he gave his evidence, was not a whit behind hand in the way of 
joke. With his manuq.1 word of commend such as we have in 

I 



Ireland. It is true, -Pa-ddy is pretty ready with his lrand, an*? 
docs sometimes give the word of command with it, but it is 
when he is-in a hurry to convince some foolish fellow, and his 
tongue wont come to the point fast enough, then being more 
ready with his hand than handy with his tongue, he Cracks a joke 
upon his neighbour. This may be what the witness calls the 
manual ''word. Mr. M'Kittrick's tongue, however, needs no oil- 
ing, it is slippery enough. He wem through his open and close 
motions with it ; marching and countermarching, and. fugleing 
So fast that no man on foot could keep pace with him, if he had 
not, after every evolution, come back to the same position. 

He says clearly, however, that he did not belong to the rifle 
battalion ; for if he had not resigned, he had bid his men good bye, 
which I take it was the same thing, the more so as he took off his 
hat and bid them- good bye, in front of the column, with the 
presence and countenance of an old soldier. If he did not 
belong to the corps, and he thus swears be did not, Mr. Dillon 
could not be mutinous or ungentlemanlike in enticing him from it. 

Mr. M'Kittrick, feeling the difficulty of his situation, expected 
to be sifted by a cross-examination. Mr M'Kittrick, to do every 
man justice, is an honest fellow, and would be more afraid 
of swearing to a lie, than he would be of meeting the enemy in 
battle. It was this fear that crisped him up. He put himself 
upon the round parade, not from fear of any- bodily harm, but 
from bodily fear of the devil. He had the misfortune to be 
troubled with a good conscience I He was like poor Launcelot 
Gobbo between- his conscience and the fiend. " Budge, quoth the 
fiend : budge not, quoth my conscience-" In short, he had so 
many turns to makej that he got quite giddy with the walse. He- 
whirled, about like a vessel in that fearful eddy in Hellgate, called r 
the pot, till at length he prayed to heaven to put him ashore upon 
tiie most cragged or most slippery rock that could be found, and 
he would return thanks that his voyage had so blessed an issue. 

Mr. Charles Eagleson proves that Mr. Dillon shewed him two 
papers: one a commission from the Governor, and the other a new 
roll. All this may very well be and yet no crime. The roll was 
for a new battalion, or a new company, he could not say which. 
Well 1 let him not say which, and there is no harm done. Did 
tie ask him to join in a disorganizing scheme ? No, he did say 
that-— what did he say I He said I had better act creditably to 
myself, and as my own company was ahout to break up, join his. 
Where, I ask, is the mutiny of ail this ? Let it be understood 
that every man, by the law, is free to quit a volunteer company,, 
otherwise it would be vain to call him & volunteer. Eut quittin;; 
that, he must return to his militia beat: having returned to his 
militia beat, he may enter into another volunteer corps, upon 
^rdvidiug.himsclf with uniform, arms, and accoutrements, at hi* 



67 

T5-\vn expense. If men have free will to do this, others are 
free to propose it to them, and as it is not laid in the charge, so 
■neither is it proved, a persuasion to desert. It is proved, on the 
contrary, to be a recruiting for the public service, and a persuading 
men to enlist that were free to do so, and persuading one of them 
to do it with credit to himself. 

Mr. Charles Eagleson, in order so season his testimony, throws 
in a spoonful of the very tincture of marvellous, that Mr. Dillon 
•feaid he could take CO men from the old battalion, and make a larger 
one. If he -could it must be by shooting the officers, and so, ac- 
cording to Mr. M'Grath, making each one count two, and so on, still 
shooting one for an example to the other, till he could have any 
number he cl>ose. At length Mr. Eagleson was put to the test 
He was asked if Mr. Dillon had not always on-duty acted officer- 
like and gentlemanly. Mr Eaglesori's conscience here flew in his 
face. He was angry at Mr Dillon, but he had too much honor 
to tell a falsehood, and he swort that the truth was so. I have 
already shewn that when not on duty* Mr. Dillon was not bound 
to be officer-like : and when on duty the witnesses/for and against, 
nil prove he was so. At length the witness is asked to name the 
men paraded at the ball alley and who belonged to the battalion, 
and he names two only out of all this number, M'Garraghan and 
iGaynor, saying there were -several others whomhe knew only by 
eye sight, but not by name ; but he knew them to be of the batta- 
lion, by seeing their names upon the roll. The court have deter- 
mined this to be good sense ; the judge advocate has refused to 
write it down, because it was nonsense. r I presume not to inter- 
meddle between such high authorities. 

Mr M'Grath knew nothing of enticing men but fromhearsay. 
Mr Dillon simply asked him if he was going to join the new 
corps in the Bowery, and that was all the conversation ; and he 
said he believed he would not ^ Mr. Cooper was present, and Mr. 
Dillon walked off, saying he would leave him to his captain. 
What was there mutinous or unofficerly in that ? ;But this witness 
also had a conscience, and admitted that Mr Dillon was always 
in his character of officer, both gentlemanly and omcerliice. The 
remainder is truly curious. This witness was called to prove 
Mr Dillon a mutineer, and all that for getting men to sign a new 
roll, and he proves that it was the prosecutor himself, and not 
the prisoner, who made him sign a new roll: and what right 
had captain Fisher to a new roll? — none ! but Mr. Dillon had : 
ior Governor Tompkins had authorized him, under the command 
of Dr. M>Neven, under whose authority lie was then acting, to 
raise a new company. The persons paraded by Mr. Dillon, if so 
it was, came voluntarily, without fine or compulsion, as has been 
-sworn; whereas Mr. M'Grath was told by the. orderly sergeant, 
I hope no person will forget himself so far as to laugh when I 
repeat it, ''that he. -was free, but that-he -must sign the nerj roll, 
otherwise he should not be considered a member of the oJU 
•greens 1 1 !*' (A loud laugh and a call to order) 



68 

Now for Mr. Queen. He proves nothing against the prisoner 
but that he saw him charged with a little platoon, but knows not 
a sentence of his enticing any body. For the prisoner, on the 
other hand, he proves that he was always officerly and gentle- 
manly on duty. Against the officer who arrests him, Major 
M'Clure, he proves that he had beat the rogue's march at the 
door of the captain who prosecutes him, and for that very fact 
the witness left the company. 

It was asked if these gentlemen were not since reconciled. It 
would seem they are, and upon good terms, and both joined in 
prosecuting Mr. Dillon for uri gentlemanly conduct. I am glad 
they are reconciled, for peace is such a good thing upon the 
earth But since captain Fisher could forgive that injury, he 
might well have spa ed Mr. Dillon. And since major M'CIure 
had once made such a mistake as to drum so good a man as cap- 
tain Fisher for a rogue, he ought all the rest of his life to have 
avoided such mistakes, and avoided, if possible, the arresting 
Mr. Dillon for imgentlemanly and unofficeiiike conduct. 

Now for Mr. William Eagleson. I have said that the former wit- 
nesses were fitter for any thing than what they were called for; but 
the foot does not fit more aptly to the leg, nor the eye in its socket, 
than this witness to the charge. Whether his testimony or the ac- 
cusation is the most diverting, let the critics decide. He belonged 
to the second company, but either he could not or would not tell who 
the captain was. James Farrell acted the last night, and before him 
Thomas M'Kittrick. If Mr. Farrell was captain, why not say so? If 
Mr. M'Kittrick was captain, why not say so? Or if he did not know, 
why not say so? I was obliged, in order to come at the truth, to ask 
him on cross-examination, it" there were two captains. If he had said 
there was only one, then 1 would have asked him again who that one 
was ; but the question was voted to be an improper one and overrul- 
ed. At last the workings of his mind came to this world's light, and 
he cries, why might there not be two ; might not one of them be shot? 
I hope " the arithmetic of his memory is not grown dizzy !'' For if 
there be that virtue in my countrymen, that by shooting one captain 
you can have two; by shooting those two again you may have four. 
They will multiply like Falstaff' s men in buckram, or Bobadil's ene- 
mies, the more you shoot the more you will have to be shot. If not 
invulnerable, they will at least be invincible, and they will be the most 
admirable legion on the earth. He proves also that Mr. M'Kittrick 
had taken leave and left his company, Mr. Farrell acted as captain, 
and at last he admits he considered him as such. If so, as far as the 
seduction of Mr. M'Kittrick goes, it could not be an enticing of any 
of the men of the '■ sundry CGm/ia?iies. ,i 

It is true he says M'Kittrick at the last parade, walked like an 
ordinary spectator, but taking care of the company, like a guardian 
or a god-father. After saying all this and much more, he finishes 
by saying that he knows not whether captain Fisher's company was 
disbanded or not. I fear his knowledge is chiefly of things that are 
not. lie may be a very worthy man, but I take him to be poetic, 
and the best poets are often three degrees removed from truth. His 
natural turn seems for the marvellous. He may be lit to ride upe& 



69 

Pegasus, or dive into Montezuma's cave, but I do not think he is 
what prose writers call a s$und witness. I should rather say he was, 
but I must then say also, that there is nothing unsound, not even the 
cracked pitcher that lies at the bottom of the well. In short, I think 
he would* cut abetter figure at any other thing than witnessing; that 
apparently is not his fort. He is too witty to have a strong memory. 

The last is Mr. Frederick Bonner. Was he enticed? No: he never 
was asked to join by any body. What is he then to prove? Why, 
that tire weeks ago, ** off and on,-' he saw Dr. M'Neven, with his 
shining blade in his hand, seated in a chair, confer the new order of 
knighthood upon the profane caitiff who stands here charged with 
being no true gentleman. 

The counsel then observed shortly that Mr. Dillon acted under the 
orders of Dr. M'Neven, both acting by authority of his excellency the 
commander in chief: that every man whom the prosecutor had ven- 
tured to name as being paraded, were men free from all military ob- 
ligations in the greens or in the blues: that it was a fortunate thing 
for the prisoner, who was deprived by the defects in the charge, of 
the means of preparation, that he was so fully able to disprove ail 
the facts by shewing the discharges and exemptions of all the men 
mentioned. Had any others been named, ic is presumed, and I am 
fully instructed it would have been the same thing. Never was 
there so full and satisfactory a defeat. Mr. Dillon must be acquitted, 
and I think most honorably. And I think I may now freely say in 
the words of serjeant Kite — 

" Courage my lads, 'tis one to ten, 
" We do return all gentlemen." 

Touching the testimony of the commander in chief, this is worthy 
of remark : that the most clear and explicit testimony may be mis- 
conceived. The judge advocate and the governor did not very 
readily agree about the taking down what his excellency had just 
then deposed. It was not till one going east and the other west, 
like the discoverers under the Bull of Pope Alexander VI. they 
went round the world and so met at last. 

Let me now add one word touching my dear countrymen. They 
are a race peculiar on the earth. They have, like others, their bad 
parts and their good. They are upon the whole, I suppose, about as 
good as other people, and will all, old greens and new greens, be true 
soldiers and at their posts when the hour of trial comes. They seem 
anxious for that time so much, that rather than nothave a little stir, 
they will now and then kick up a little sham-fight among themselves. 
But now they have got this off their stomachs, I trust they will get 
easier and live in gcad harmony and union. One virtue they can 
boast, and that is frankness ! Other men more sly, hide their follies 
or their faults, but when they are in the vein of folly, they take good 
care to seem no better than they are, and they let all the world 
know it. 

Mr. President and gentlemen members of the court, I have at 
length got to the end of my task, and humbly take my leave. 

The Judge Advocate in Reply. 
Mr. President, 

I must confess that on coming here, I had anticipated but two 
points but from the wide range the counsel has taken I shall be 
forced to say more tfran I intended. 



70 

"Every member of this court will agree with me, that however 
humourous the observations of the counsel have been they furnish no 
bar to the charges against his client. 

There is a liberty certainly and a latitude allowed to counsel even 
for the display of their wit. And the counsel here will deserve 
credit for his ingenuity if by it he has been able to make the court 
think the charges as ridiculous as he has represented them. Per- 
haps in that he will have done his duty. 

It was a trick of this same ingenuity when the counsel early in the 
proceedings, bound up his papers and books and walked out of court. 
This is not the first time the same thing has been done, though per- 
haps it was an original conception of the counsel, yet it was done by 
certain ingenious counsel in the celebrated case of Fryes. The ob- 
ject was, to leave the prisoner some claim after conviction to the 
mercy of the court. 

The gentleman has endeavoured throughout to make this a hu- 
morous and light proceeding. If he has succeeded, I must say he 
has not used his wit in vain. But it remains for me, though not to 
press any thing with too much vigour, yet to assist the court as far 
as I can in forming a correct judgment. 

In the first place, in a country like ours, where the militia have 
always been considered as the great bulwark of defence, the 
great principle is, not to 'Introduce any more standing troops than ne- 
cessary, because standing armies are always dangerous to repub- 
licks. But we must not be therefore unprotected. No. The desired 
.object is then to have as far as is practicable the strength of a 
standing army, with the security of a militia. This is done by form- 
ing uniform companies, under officers who will oftener call them to- 
gether and by exercise school them in military tactics. This the 
legislature has thought an important measure, and the governor 
(commander in chief) has said that he wished such companies to be 
raised, but. he emphatically added, without impairing the prosperity 
of other companies already existing. The congress and general go- 
vernment, all concur in the principle, and encourage these uniform 
corps by exemption from juries and from all other military duty. 

The good order of these companies is then a serious and import- 
ant consideration, and not a laughing matter. Then we should in- 
quire seriously whether the prisoner be guilty of injuring the service 
by trying to break up one of these useful corps. In this view it may 
be proper to cousider two things. 

1st. Is the prisoner an officer under the laws of this state, and in 
the city of New- York. And the answer is, that he is commission- 
ed by the commander in chief. 

2dly. Do the charges alleged against him attach upou him. 

Before we proceed to these inquiries, it may be proper to remove 
some formal objections as to the supposed alteration of the charges. 

He is described, it is said, as of the republican green riflemen* 
whereas both by his commission, under the brigade orders, he is of 
a corps differently named. It has been already answered that these 
words may be considered as mere surpluses, and the description is 
still sufficient ; and further that as this corps has been known and 
has suffered itself \o be called republican greens,, the individuals 
shah not be allowed now to object to the name. 

The alteration of the charges is an exception equally unfounded. 
Tor although they were reduced to two general heads, yet the ar- 



71 

re$8ng officer is not restricted from making as m'any heads as he hatf 
charges. Under the first head — mutiny, arc two or three different 
charges, although not distinctly set forth as separate. 

First — That he declared he" would take sixty men from the bat- 
talion. 

Second — That he did parade a number of men in the republican 
green uniform, contrary to law and without the consent or permis- 
sion of his superior officers. 

Though these are not separately stated, yet that they are separate 
appears from the- context, * 

Third — That he or his party in the present contest, or the repub- 
lican green battalion must fall. 

The court thought the first too vague to occupy their time. 

The second they considered more serious, and determined to hear 
the evidence on it. 

The third they thought too vague and undefined'. 

In the same manner under the second general division 

the charge of calling the officers tyrants and orangemen, without 
any innuendo to explain these words, appeared too uncertain, and 
that it was unnecessary to take up their time with that. 

But the next charge of seducing the men to quit their companies- 
and join him, considering it as a certain independent charge, they 
determined to hear evidence on it. 

It cannot be denied that these three charges are substantially 
distinct. It would be impossible to try them jumbled together, and 
3iad they all been tried, we must have examined witnesses sepa- 
rately to each of them ; and therefore the exception on account of 
the alteration in the charges, proves unfounded. 

The counsel, after excepting to the jurisdiction, the informalities* 
and the alterations, and arguing at great length upon them, was 
heard patiently upon this point a second time, which I remark that 
all may bear witness that the court has been lenient and indulgent, 
and' shewn no disposition to rigour. 

The counsel then read authorities to shew the regulation of the 
militia in England : that unless when called out in actual service, 
they are not amenable to courts martial, and has inferred the same 
thing in this country: and that for other than military offences, they 
should be turned over to the civil power, and that for no conduct 
•when not on duty they should answer to a military court. 1 have 
taken down his word's. When he calls upon the judge advocate do 
say upon what law he can support the contrary of his position. X 
answered upon the law of reason, common sense, and upon the law 
of the land. Let us reflect upon it- 
Officers are daily arraigned for offences committed when not on 
duty, as all the members of this honourable court well know : fc> 
there are sins of omission as well as Commission. For instance, 
they are brought to trial daily for not appearing on parade. 

And cannot a man act in an unofficerlike manner unless he hap- 
pens to be on parade or on duty at the moment ? 

It was asked if it was on the parade day of the prisoner's compa- 
ny. But is he to lay aside the officer and the gentleman on all other 
days? Are there not parade days of other companies, and shall he 
not be liable then? Suppose an officer not on duty should meet a co- 
lonel or brigadier general, and insult him on his duty, should he not 
& complained of and have his commission taken from him.* Ofir.ft 



72 

let the officers think that they shall be responsible only for the days 
of their own parade, and that they may be ungentlemanly and inso- 
lent- all the year except three or four days, and you establish a dan- 
gerous principle. 

Having done with the more serious objection, I shall consider 
whether the prisoner is brought within the charges. 

Although I do not mean to press the charge of mutiny, yet the* 
court are not bound to acquit the prisoner of all, because he has not 
been proved guilty of all. He may be found guilty of the *minor 
offence, when he is not proved guilty of the major. (Adye, 203.)* 

Then leaving out the first charge, mutiny, I shall confine myself 
to the two last charges, ungentlemanly and unofficer-like conduct, 
and examine how far they have been supported. 

Mr. Patterson proves the parading of men, some in the uniform 
of the republican greens, some out of uniform, some of the same' 
company as himself. 

Mr. M'Curdy proves the parading of 15 or 20. 

Mr. M'Kitrick saw the manual word given to a number of men, 
the greater part in uniform. 

To prove the charge of enticing, some of the witnesses named Lan- 
dy, Scott, M'Garraghan and Gaynor. And they very quickly catch 
at this, and exultingly proceed to shew those four men discharged. 
But I ask why did they not produce the other fourteen ? It can- 
not be pretended that Mr. Dillon was unacquainted with the men he 
paraded. It was enough for the prosecutor to shew that at one, two 
or three times a number had been paraded, that he had been in the 
habit of parading all these men, and it is a wild idea to supple that 
he knew only four of them. Is it not a much fairer presumption, that 
he kn^w the others but was unable in like manner to produce them 
and shew them discharged; having had them often together; having; 
a roll signed by them, and yet not producing their discharges, the in- 
ference is, that he has enticed many others whom he has kept out of 
sight upon the trial. The ready ingenuity of the counsel is not' 
always to deceive. The fact of seduction is proved by two witnesses 
— the Eaglesons. 

William Eagleson, who belongs to the battalion since its origin 
under captain Gaston, says, that ensign Dillon went to his house with 
a roil on which were many names, his own among the rest, and read 
him the preamble, and asked him to sign it, and offered him the 
same rank he now held. He did not, it is true, in terms ask him to 
join in a "disorganizing scheme:'' but he told him his company must 
break up, and he had better join him when he could do it with cre- 
dit. The court will see that these words bear a serious aspect. So 
much for Charles Eagleson. 

William Eagleson, to whom the same general question was put, 
" if he knew of the prisoner's enticing any men, occ." answered 
yes, he has done it to myself. He asked me at different times to 
join his corps, and offered me the same rank ; the last time was at 
William Gaynor's. 

The court then sees that these charges wear a serious aspect. 
They affect not only the prisoner's character as an officer and a 

* The court may find him guilty in a less degree but not of a quite 
different crime, as murder and man-slaughter, being different de- 
grees of homicide, grand and petit larceny, &c. 



73 

gentleman, but the general regulations of tie service, and of the 
uniform companies. For this way of making new ccips dees not 
increase the militia, but distresses the unifcim companies already 
formed. 

The Governor was called tc prove a letter in his hand-writing : 
the letter was not afterwards produced in evidence, but the ccm- 
mander in chief gave his evidence, that he had expressed his dis- 
approbation of raising new corps, unless where they could be filled 
without diminishing or impairing the prosperity of the old ones. 

The charges, therefore, are not such as we all, captain Fisher 
and all, should wish it had turned out on proof to be — light and 
trivial : but upon testimony uncontradicted, and which must be 
credited, they appear to be serious. We might all have been glad 
it had been otherwise : but the court will perceive the charges are 
brought heme in a way not to be got over. The not producing more 
than tour out of the number they paraded, is a presumption so 
violent as to equal the strongest testimony, that ihe others were 
men belonging to the different companies, and therefore kept back. 
Was the prisoner's conduct then, officerlike, as it regarded the 
directions of the commander in chief, the service in general, and 
his fellow officers ? or was it gentlemanly ? If so, I have yet to learn 
■what that is. Instead of endeavouring to reconcile differences and 
dissentions, he takes advantage of them to fly off himself, and to 
take with him half of the whole corps. 

I think then, not to detain the court longer, that there is no doubt 
but this conduct was both ungentlemanly and unofficerlike. There- 
fore, how much soever the court, the prosecutor, and myself, might 
have wished him to have a perfectly honourable acquittal, and 
afterwards to raise a new corps, if he could do it hi an orderly 
course, conformable to the directions of the Governor ; yet the tes- 
timony of the Eaglesons brings the charges so fully home, that the 
court has only to fix the sentence. 

But for the wide range the counsel took, and the variety of 
authorities he pressed into his service, I should not have occupied 
the court above ten or twelve minutes. 

dj" During the summing up of the prisoner's counsel, captain 
Myers returned to smoke. 

Extract from the ninutes of the Judge Advocate. 
The court then considered the matter, and after deliberating on 
the subject, the question was taken on the charges severally, and 
the court decided that he was not guilty on either charge : but that 
in their opinion the conduct of ensign Dillon was censurable in res- 
pect to his conversation with the two Eaglesons, Charles and Will- 
iam ; such conduct in an officer tending to impair the peace, union 
and well-being of the corps already established. The court pro- 
ceeded to the reading of the foregoing minutes, and comparing 
them with those in the possession of the judge advocate, and found 
them to be correct, and to agree with the same in every particular. 
The court directed the same to be signed by the president, and 
countersigned by the judge advocate, and that the president return 
the same to the brigadier general without delay. 
{Signed) 

JASPER WARD, President, 
(Attested) 
Adrian Hegemax, Judge Advocate. 



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